Netanyahu’s judicial ‘reform’ threatens to bulldoze the Declaration of Independence

Having easily secured initial approval for a central element of its move to neuter the High Court, the coalition is now on a collision course with Israel’s foundational principles

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Prime Minister Benjamin Netanyahu shakes hands with Justice Minister Yariv Levin, as other coalition members look on, after a vote on the government's judicial overhaul plans in the Knesset early on February 21, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu shakes hands with Justice Minister Yariv Levin, as other coalition members look on, after a vote on the government's judicial overhaul plans in the Knesset early on February 21, 2023. (Yonatan Sindel/Flash90)

Barely seven weeks after the coalition was sworn in, it easily secured Knesset approval overnight Monday-Tuesday for the first reading of a law that would grant it near-absolute power over all three branches of Israel’s governance.

With a vote of 63-47 in the 120-seat parliament, it blitzed through the first reading of a bill that gives the governing majority control of the panel that selects Israel’s judges. In doing so, it disregarded a plea from President Isaac Herzog to pause the legislative process and look instead at his proposals for genuine judicial reform; open a dialogue with the opposition; and heed the vast, ongoing public protests against what one of its own MKs, Likud’s intemperate David Amsalem, let slip last week is, of course, a “revolution” in the way Israel is governed.

“Today there will be votes, and tomorrow I hope the path will be opened to dialogue,” claimed Prime Minister Benjamin Netanyahu earlier Monday, insisting there would be “plenty of time” for debate, and hopefully agreement, before the second and third readings required for a bill to become law.

But in a spontaneous response to an opposition MK’s speech during the debate preceding the vote, Netanyahu’s justice minister indicated that the prime minister was being disingenuous. Yariv Levin announced that he intends to get his entire package of proposals through all three readings and onto the law books before the Knesset breaks for Passover, six weeks from now.

In a long, bitter speech just before the vote, in which he also hinted at a desire for changes to come in academia and the media, Levin continued the coalition’s doublespeak, saying “I stretch out my hand” for substantive dialogue with the opposition and that he is convinced “we can reach understandings,” but also that “nothing will deter me from doing the right thing — [instituting] a deep and necessary reform of the Israeli judicial system — without delay.”

Unveiled less than a week after this right, far-right and ultra-Orthodox coalition took office, Levin’s package goes beyond insuring that the coalition chooses the judges. It also near-completely neuters the High Court’s capacity to strike down laws and government decisions, no matter how outrageous, and enables the coalition to generally re-legislate, with a simple Knesset majority, laws that are somehow struck down.

All this in a country with no other brakes on abuse by the political leadership — no constitution, no bill of rights, no second parliamentary chamber, and a Knesset with zero capacity to resist any legislation advanced by a like-minded coalition — as Monday night’s vote underlined.

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman (left) at a hearing, with committee legal adviser Attorney Gur Bligh (right), February 19, 2023. (Noam Moshkovitz, Knesset Spokesperson.)

The practical consequence — that almost all basic rights of Israelis will be subject to the whims of the political majority of the day, with the High Court prevented from acting, as it has to date, as the last-resort constraint — was made explicit earlier Monday during the latest of numerous tempestuous meetings of the Knesset’s Constitution, Law and Justice Committee.

Chaired by Simcha Rothman, of the coalition’s far-right Religious Zionism party, it was working on the next pieces of legislation, including an amendment stipulating the radically reduced circumstances in which the High Court of Justice will be able to intervene in legislation. Under the terms of this amendment, warned the committee’s hapless legal adviser Gur Bligh, who has been relentlessly maligned by Rothman, there would be “no constitutional protection for basic rights” like equality, freedom of speech, the right to due process in legal proceedings, freedom of association, and the right to religious liberty.

Just as Netanyahu and Levin have shrugged off general and specific concerns that their remaking of Israel’s governance marks a descent into a tyranny of the elected majority, Rothman was entirely unfazed. “I don’t think that the legislation excludes the possibility that the High Court can review a case of the violation of freedom of expression,” he declared blithely.

(Incidentally, in its current form, the bill advanced overnight Monday-Tuesday could ultimately give the coalition control of eight of the nine votes in the Judicial Selection Committee, not five as is widely believed: Three ministers, two coalition MKs, and the three representatives of the judiciary. This is because, under the provisions of other mooted legislation in the overhaul package, the coalition would get to choose the High Court president, and that president would choose the committee’s two ex-justices.)

Closer to the abyss

As the coalition bulldozes its legislation through the parliament it effortlessly dominates, Israel’s internal climate is heating up — to the point where the head of the Shin Bet security agency is said to have told Netanyahu, Levin, opposition leader Yair Lapid and others in the last few days of “growing potential for violence and escalation” and urged them to help lower the flames. Herzog warned last week that Israel is “marching into the abyss” and is on “the brink of a constitutional and societal collapse.”

Netanyahu assured American Jewish leaders on Sunday night that while Israel has heated debates and is a rambunctious democracy, “we are one people, with one destiny, with one country, one faith,” and that “there will be no bloodshed, I hope, none at all.” But Netanyahu has for years incited against the state prosecution and the police in the context of his criminal trial, and against the “dangerous” leftists who briefly ousted him from power. Lately, he has also targeted the attorney general, for daring to remind him that the conflict of interest arrangement that enables him to serve as a prime minister while on trial means he must not get involved in a legal overhaul that could impact the proceedings against him.

Prime Minister Benjamin Netanyahu speaks to the Conference of Presidents of American Jewish Organizations, in Jerusalem on February 19, 2023. (Amit Elkayam)

“I’ve been given a gag order,” he protested at Sunday night’s Conference of Presidents of Major American Jewish Organizations event, calling the limitation “patently ridiculous.”

It is nothing of the sort. The legislation his justice minister and colleagues are moving to enact will ultimately offer myriad ways for him to escape his trial — including, for instance, by ensuring that the justices who would hear an appeal against any conviction are handpicked by his coalition. And that, of course, is a central driver of this whole terrible assault on Israeli democracy.

Meanwhile, some opposition lawmakers have debased their cause by jumping onto the tabletops at Rothman’s committee meetings; a minority of radically irresponsible anti-coalition activists have called for violence and made threats against Netanyahu; demonstrators on Monday morning tried to block Rothman from leaving home for the Knesset and to stop a Likud MK, Tally Gotliv, from setting out with her special needs daughter to school. It hardly bolsters the credibility of a battle to protect the rule of law when efforts are made to stop elected legislators getting to parliament to debate and vote.

With the first major overhaul legislation now piloted through its first reading, the prospect for patiently formulated and genuinely well-intentioned judicial reform has receded still further — and with it the hope of healing that dangerously widening internal Israeli rift.

Justice Minister Yariv Levin at a discussion and a vote on the government’s judicial overhaul plans in the assembly hall of the Knesset in Jerusalem, on February 20, 2023. (Yonatan Sindel/Flash90)

Not only has Levin explicitly stated his intention to have his entire “first phase” of radical changes enacted by the end of this Knesset session in early April, with the promise of untold further phases of “reform” to follow, but the coalition can, in theory, bring any bill that has passed its first reading back to the plenum for its second and third (final) readings at any moment. So any negotiations would be held with what the opposition Yisrael Beytenu MK Yulia Malinovsky has vividly characterized as the equivalent of “a gun to the head.”

After the passage of this first bill, Netanyahu early Tuesday hailed “a great day” — as indeed it clearly is from the narrow point of view of his personal interests. His one-time partner in government, Benny Gantz, more accurately called it “a black day for democracy.”

Just before the vote, Gantz went to the Knesset podium and issued a last plea for dialogue, urging the coalition to halt the legislative process and begin substantive talks there and then. “It’s what the public wants,” he argued.

But the coalition rejects that assertion. After all, it decisively won the election last November.

And all its component parties are directly invested in neutering the judiciary — whether it is to ensure ultra-Orthodox males can get boosted government funding for full-time Torah study while evading the draft, or to enable far-reaching changes in Israeli policy in the West Bank… or to ensure that, no, not everybody in Israel is equal before the law.

Israelis unfurl a massive copy of the Declaration of Independence at a protest against the Netanyahu government and its planned judicial overhaul in Tel Aviv, February 18, 2023. (Avshalom Sassoni/Flash90)

Our Declaration of Independence promises that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture…”

As of today, those foundational commitments and guarantees are under direct and tangible threat, from the very government charged with upholding them.

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