The Roots of Israel’s Judicial Reform Proposal

by March 2023
A demonstration in support of Israel’s judicial reform, in Jerusalem, March 27, 2023. Photo credit: REUTERS

A bitter debate has now engulfed Israeli society over the proper role of the judiciary. The new government, led by Prime Minister Benjamin Netanyahu, began its term in January by introducing far-reaching reforms to the judiciary, which I have already described in detail. The continuing strong reaction to these proposals, well described by my JST colleague Ksenia Svetlova as a “leaderless protest,” is now entering its fourth month of weekly demonstration, often shutting down Tel Aviv’s main highway. President Herzog even stepped out of his ceremonial role as head of state to publicly propose a compromise that neither side liked.

Many in the media have done a good job of explaining the “anti-side” of this debate. Far fewer are those who seek to understand and explain the other side; that is, why so many in Israel believe that the Supreme Court has excessive powers that need to be reformed. There are both political and legal roots for this reform movement, and both are described below.

The core political support for the reforms could be described as a right-wing populist reaction against the “deep state”—not only against the judiciary but also the military and intelligence establishments, much of the business community, and the mainstream media—perceived by many on the right as dedicated to denying them, the majority of the electorate, the prospect of governing.

Often cited examples in which the soldiers, intelligence officials, judges, and journalists all acted against the democratic majority include the support they gave to the Oslo process in the 1990s, to the disengagement from Gaza in 2005, and more recently to the Lapid government’s compromise with Lebanon on the delineation of the maritime borders. A recent source of political mobilization is the fresh memory of riots in several Israeli cities with mixed Jewish and Arab populations during the fighting in Gaza in May 2021, which generated fear and anger, and largely accounts for the rise in popularity of Itamar Ben-Gvir, his party, and what they stand for.

Yet, alongside these general political grievances, there is also the more focused legal concern with what many in Israel have come to see as the “hyperactivism” of the Supreme Court since the 1990s, particularly under the leadership of former Chief Justice Aharon Barak (1995–2006). He openly held that “everything is justiciable,” and undertook—almost immediately after his appointment—to interpret two Basic Laws of the Knesset passed in 1992 as constitutional in nature (on Human Dignity and on Freedom of Occupation). In doing so, he empowered the court to annul other laws, passed later, as unconstitutional, if they were deemed to contradict these Basic Laws. As critics noted, these Basic Laws were passed without a constitutional ratification process and with the smallest possible majority of a Knesset quorum.

Justice Barak used a relatively obscure case—the cancellation of the debt of one cooperative village in the north (United haMizrahi Bank v. Migdal Cooperative Village, 1995)—to assert this authority of the court, and over the years he further extended this interpretative power. His successors through 2012 followed his lead. In the book The Sword and the Purse, written in Hebrew in 2013, former Minister of Justice Daniel Friedmann detailed the rise of this “judicial revolution” and decried its attendant dangers. So did many others in Israel, and some (like Friedmann) are now opponents of the Netanyahu reform package as currently proposed.

Alexander Hamilton wrote in Federalist No. 78, that “the judiciary will always be the least dangerous to the political rights of the Constitution” because it “has no influence over either the sword or the purse.” But proponents of the government’s reforms make the case that Israel’s Supreme Court has indeed asserted the power to control both purse and sword and has thus become, in their view, the most dangerous branch of government. It’s past time to rein it in, they say.

It is against this background that many opponents of the current bills even admit that some form of judicial reform is indeed necessary. What they suggest, however, is to put the government’s project on hold and negotiate a compromise package. Prime Minister Netanyahu initially rejected any such delays and dismissed the defense minister who had joined the calls to halt the bills. This, in turn, led to ever increasing protests and a general strike by the unions (backed, in an unprecedented fashion, by the heads of Israel’s industries), causing Netanyahu to back down and temporarily suspend the bills. As Israel enters a month of spring holidays (Passover followed by Memorial Day and Independence Day), it is possible to imagine a negotiated compromise.

>>  Insight from Israel: Read more from Eran Lerman

Eran Lerman
Col. (ret.) Dr. Eran Lerman is a former senior intelligence officer. He served as Israel’s deputy national security adviser (2009–2015), and prior to that as director, AJC Israel and ME office (2001–2009). He is currently the vice president of the Jerusalem Institute for Strategy and Security and a lecturer at Shalem College. @EranLerman
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