ISRAEL AT WAR - DAY 145

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Analysis

‘Gun is on the table’: Both sides of overhaul clash say constitutional crisis coming

What if the judicial overhaul is passed, the Supreme Court strikes it down, and the Knesset doesn’t abide by that decision? Who holds final authority – the court or the Knesset?

Students clash with police during a protest against the Israeli government's planned judicial overhaul, near the Supreme Court in Jerusalem, March 9, 2023. (Yonatan Sindel/Flash90)
Students clash with police during a protest against the Israeli government's planned judicial overhaul, near the Supreme Court in Jerusalem, March 9, 2023. (Yonatan Sindel/Flash90)

JTA — In a country that is deeply divided, where attending anti-government protests has become a weekly ritual for many, at least one idea still unites the right and left: Israel appears to be hurtling toward a constitutional crisis.

The crisis — which Prime Minister Benjamin Netanyahu termed a “governmental breakdown” during a recent visit to Germany — would flow from legislation Netanyahu is pushing that would overhaul Israel’s judiciary.

The proposal — which proponents claim is needed to rein in over-zealous courts but critics say threatens Israel’s democratic character — would increase the coalition’s control over the appointment of Supreme Court judges, and would enable the Knesset to override court decisions with a simple majority.

A constitutional crisis occurs when a country faces an unsolvable dispute between competing branches of government. Countries have recovered from constitutional crises in the past — the United States has had several over the centuries, including multiple ones related to the leadup to the Civil War and its aftermath — but the process can be difficult, and mistrust long-lasting.

In Israel’s case, what happens if the Knesset passes the judicial legislation, the Supreme Court strikes it down, and the Knesset doesn’t abide by that decision? Does the court or Knesset hold final authority?

However that question is answered, just getting to that point would represent a dramatic breakdown in a 75-year-old democracy. “The very idea that the government might not comply, might ignore the Supreme Court’s decision, would be an unprecedented crisis,” said Michal Saliternik, a law professor at Netanya Academic College.

Demonstrators carry a massive Declaration of Independence during a rally in Tel Aviv to protest the Israeli government’s planned overhaul of the judicial system, on February 18, 2023. (Tomer Neuberg/Flash90)

In that dangerous moment, some Israelis see opportunity. In a perhaps ironic twist, Israel is on the precipice of a constitutional crisis but doesn’t actually have a constitution. It’s a risky bet, but a battle between the court and the coalition, said international law scholar Tamar Megiddo, might just force Israel into the long and arduous process of writing a governing document and figuring out how to balance the country’s competing authorities.

“The entire constitutional system here is held together by duct tape,” said Megiddo, who teaches at the College of Law and Business outside Tel Aviv.

“It’s ridiculous. We have no protection of our constitutional regime, no protection of our separation of powers, no protection of checks and balances and no protection of human rights. The only reason this functioned for the past 75 years is because there was good faith.”

She added, “I think a lot of people view the current constitutional moment, or the realistically likely constitutional crisis, as also an opportunity for fixing everything that’s broken in the system.”

When asked how a clash between the government and courts could come to a head, those scholars and others all individually sketched out versions of the same scenario: The government passes a law giving itself control over judicial appointments, the court strikes down the law — and the government appoints new judges anyway. When those judges arrive for their first day of work, should the security guards let them in? Who should the guards obey — the government that appointed the judges, or the courts that declared their appointment illegal?

While that question is being debated, the courts may not be able to hear cases at all.

“At the end of the day, the state needs to function,” Saliternik said. “The courts have work to do. If the judges can’t enter their chambers, it will definitely impact everyone. It’ll be like a third-world country in which institutions don’t function.”

Yisrael Beytenu MK Yulia Malinovsky (right) and Yesh Atid MK Vladimir Beliak (left) remonstrate with Knesset Constitution, Law, and Justice Committee Chair MK Simcha Rothman, March 1, 2023. (Yonatan Sindel/Flash90)

The law on judicial appointments may be passed next week, and for rank-and-file Israelis, both Saliternik and Megiddo said, this question would hardly be theoretical. If Israel’s system of government descends into crisis, it could lead to a downgrade in the country’s credit rating and an economic downturn that ordinary citizens feel in their pockets.

And given how invested Israelis have become in the face of the judicial reform — protesting in the streets by the hundreds of thousands — it’s unlikely they’ll ignore what ensues if and when it passes. President Isaac Herzog, who has a reputation for congeniality, gave a pained speech last week warning of the potential for civil war.

“If the court issues a ruling and the government does not comply, then the Israeli public will say, ‘This is the ultimate proof that this is not a democracy anymore,’” Saliternik said. “I say this with trepidation, but if there’s an open battle between the Supreme Court and the Knesset, it could result in street violence.”

Megiddo said that even the possibility of such a crisis has normalized tactics that were once on the fringe, such as refusal to perform military service, a duty seen as sacrosanct across much of Jewish Israeli society.

Defense Minister Yoav Gallant reportedly warned that the possibility of mass refusal to serve could cause him to leave his post. On Tuesday, a group of military reservists said they plan to recruit tens of thousands more who will pledge to shirk reserve duty if the legislation goes through.

“People who refuse service were considered, in the Israeli public, to be a very extreme minority, and now it’s mainstream to say that people won’t serve the military for a dictatorship,” Megiddo said. “It’s unbelievable how mainstream saying that at the moment is, and that has long-term impact.”

Both supporters and opponents of the legislation in the Knesset are treating a constitutional crisis as a real possibility. The only thing they disagree about is who will be to blame — and both sides appear to be raising the stakes, vowing either to disobey government decisions, or disregard the court.

Leader of the National Unity Party MK Benny Gantz speaks during a faction meeting at the Knesset, March 20, 2023. (Erik Marmor/Flash90)

“The security situation is troubling,” said former defense minister Benny Gantz, an opponent of Netanyahu, in a speech last week referencing escalating violence between Israelis and Palestinians, and urging Netanyahu to pause the court legislation. “Don’t drag us into an irresponsible constitutional crisis during a security crisis.”

Netanyahu’s allies, unsurprisingly, say it is the opponents of the reform — and the justices of the court themselves — who would be responsible for a constitutional crisis, should the court strike down the law.

Striking down the reform legislation would be a “doomsday weapon,” wrote Dror Eydar, a columnist for the pro-Netanyahu tabloid Israel Hayom, in a piece titled “Inviting a constitutional crisis.”

“This striking down would constitute a coup d’etat,” Eydar wrote.

Another column four days later in the same publication, however, urged a compromise on the judicial reform in order to avert a constitutional crisis. That piece was written by Miriam Adelson, whose husband Sheldon — the late billionaire philanthropist — founded and funded the paper.

Finance Minister Bezalel Smotrich, left, speaks at a press conference in the Knesset in Jerusalem on March 21, 2023, alongside Constitution Committee head Simcha Rothman. (Yonatan Sindel/Flash90)

Netanyahu’s coalition members are still worried enough about the prospect of a constitutional crisis that they’ve agreed to what they refer to as a “softening” of one piece of the legislation. Instead of giving the coalition total control over Supreme Court appointments, the new text of the bill would let the coalition control its first two judicial appointments.

“There’s no doubt that the change we made prevents any real claim that can create a constitutional crisis,” said Justice Minister Yariv Levin, who is spearheading the legislation, on Israeli tv on Monday.

But then he threw down the gauntlet: If the court still overturns the law, Levin said, “That would cross every red line. We definitely wouldn’t accept it.”

Responding to that claim, Yair Lapid, the leader of the opposition, said that if the government disobeys the court, citizens should disobey the government.

“That’s it, the masks are off. The gun is on the table,” Lapid tweeted. “The real prime minister, Yariv Levin, is drawing us into total chaos and a constitutional crisis we won’t be able to come back from. If the justice minister is calling on the government not to obey the law, why should the citizens of Israel obey the government?”

Opposition leader Yair Lapid speaks at a protest against the judicial overhaul, February 13, 2023. (Arie Leib Abrams/Flash90)

Another Likud lawmaker, Economy Minister Nir Barkat, said he would respect the court’s ruling if it struck the law down. But in any case, the Likud bill doesn’t appear to be a promising avenue toward compromise.

“This isn’t softening and compromise, this is Hungary and Poland on steroids,” Labor party chair Merav Michaeli said on a radio program on Monday, referring to countries where the government has increased its control over the court system. “From the start, I said we can’t negotiate with them.”

A predecessor of Michaeli’s in the Labor party has also taken a hard line and — unlike the many voices who worry about a clash of government authorities — has suggested that he would prefer a constitutional crisis to compromise. Ehud Barak, a former Israeli prime minister, said that a constitutional crisis would force senior Israeli military commanders to take sides — and expressed confidence that they would choose to obey the courts.

“It would be a severe constitutional crisis,” Barak said in a speech last month. “That’s when the test of the gatekeepers and defenders of sovereignty would arrive: The head of the Shin Bet, the police commissioner, the chief of staff and the head of the Mossad. I’m convinced that they understand that in a democracy, the only choice is to recognize the supremacy of law and the Supreme Court.”

Economy Minister Nir Barkat arrives for a meeting at the Prime Minister’s Office in Jerusalem, January 3, 2023. (Yonatan Sindel/Flash90)

The mounting threats by military reservists, and comments by former military commanders opposing the court reform, may indicate that the military will opt to follow the court. But Saliternik hopes that’s a choice Israeli forces won’t have to confront.

“This is something that has never happened in Israel,” she said. “It’s so very hard to think about. I very much hope that that government will get a hold of itself and act responsibly.”

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