Smotrich launches bid to neuter judiciary, potentially halt ally Netanyahu’s trial
Religious Zionism leader’s legal reforms would abolish offense of ‘fraud and breach of trust,’ let MKs ignore court rulings on laws, give gov’t control over selection of judges
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Religious Zionism leader Bezalel Smotrich unveiled a program of radical, far-reaching legal reforms on Tuesday which, if enacted, would drastically reduce judicial authority and could lead to the termination of Likud leader Benjamin Netanyahu’s criminal trial.
Smotrich said that acceptance of his proposals would be a precondition for his far-right party joining a future coalition following the November 1 elections.
The proposed changes to the legal system would also hobble the ability of the High Court of Justice to strike down Knesset legislation if it contravenes one of Israel’s Basic Laws, and give the government control over the appointment of all judges, including those for the High Court.
Smotrich, whose party is polling at around 13-14 seats, which will likely make it the country’s third-largest party, claimed the reforms would strengthen Israel’s Jewish and democratic character.
Critics denounced the proposals, with Prime Minister Yair Lapid alleging they emanated from Netanyahu who, he said, “has decided to destroy the legal system and the rule of law in Israel.”
Said Lapid: “If this gang gets into power, they’ll make every effort to destroy Israeli democracy, to cancel all the authority of the courts, to destroy the separation of powers in Israel. They don’t even bother to hide this anymore. It’s a deliberate campaign to cancel Netanyahu’s trial, and if they cancel Netanyahu’s trial by using political power that would mean that Israeli democracy is no longer Israeli democracy as we know it. We’re battling against this.”
Justice Minister Gideon Sa’ar described the program as “a paradise for government corruption,” and said the reforms marked “the politicization of the legal system” and constituted a ruse to cancel Netanyahu’s trial.
Religious Zionism is part of the so-called Netanyahu bloc, an alliance of right-wing and Orthodox parties seeking to defeat the outgoing coalition parties on November 1.
One of the central demands laid out by Smotrich is to abolish the offense of “fraud and breach of trust,” which the Religious Zionism leader argued enables legal officials to interfere in the political system. Netanyahu is charged with this offense in all three of the cases for which he is currently on trial, along with a bribery charge in one of the cases.
Speaking at a press conference in Kfar Maccabiah on Tuesday afternoon, Smotrich acknowledged that Israeli law as it stands would mean that Netanyahu’s fraud and breach of trust charges would be dropped if that crime were abolished, since changes to the criminal code are immediately applicable, even to ongoing proceedings.
He claimed, however, that a way would be found to ensure Netanyahu’s trial would nevertheless continue, so that the legislation could not be portrayed as a “personal law” designed for Netanyahu’s benefit.
The Likud party said in response to Smotrich’s proposals that they would “not be applied retroactively” and would not affect the legal proceedings against Netanyahu.
Speaking earlier on Army Radio, Religious Zionism MK Simcha Rothman said, by contrast, that the law halting criminal proceedings after an offense has been abolished would not be changed, meaning those elements of Netanyahu’s trial would indeed be terminated if Smotrich’s reforms were passed in the next Knesset.
During Tuesday’s press conference, Smotrich described the Israeli legal system as “sick,” and criticized what he and Rothman alleged was a lack of oversight over the attorney general and state attorney’s office; an inability of government departments to act due to legal restraints; and the intervention of the High Court of Justice in Knesset legislation.
Smotrich insisted that the changes he and his party would carry out were essential to keeping Israel “a Jewish and democratic state.”
The Religious Zionism leader claimed the Israeli legal system was antagonistic to right-wing politicians and parties. He alleged that if the pro-Netanyahu camp were victorious in the upcoming election, the judicial system would “work to stymie the reforms which the right wing will try to advance, including by cobbling together fake cases and opening criminal proceedings against politicians who do not subject themselves to its authority.”
Abolishing what he called the fluid and undefined “fraud and breach of trust” offense, he claimed, was essential in order to prevent the legal system from eliminating hostile politicians.
“Through using it, the ‘rule of law system’ can threaten elected officials, halt their activities, and settle the score with politicians who dare to step out from the lines drawn up for them by legal clerks and advisers,” the Religious Zionism platform states.
Another major reform proposed by Religious Zionism is an overhaul of the Judicial Selection Committee, which currently comprises three High Court judges, two government ministers, two members of Knesset, and two members of the Israel Bar Association.
Since only four committee members are elected officials, Smotrich, Rothman and others on the right have frequently argued that this gives unelected representatives outsized influence over the appointing of judges to the lower courts and the Supreme Court as well.
Smotrich’s proposed reforms would change the makeup of the committee so that the government would essentially control six out of the nine committee members.
The party’s legal platform states that the panel would instead be composed of the president of the Supreme Court, the president of one of the country’s district courts and one of its magistrate’s courts, both of which would be selected by the justice minister, along with six ministers or MKs, four from the coalition and two from the opposition.
The justice minister would head the committee.
Smotrich said at the weekend that Religious Zionism, an alliance of far-right factions that includes Itamar Ben Gvir’s Otzma Yehudit, would be seeking the Justice Ministry portfolio in a hoped-for Netanyahu-led coalition after the elections.
In addition, the Religious Zionism party’s reforms would also seek to enact a long-sought goal of right-wing, religious parties, namely a High Court override law that would allow the Knesset to re-legislate any legislation that the High Court ruled was in contravention of one of Israel’s Basic Laws.
Smotrich’s plan would allow the High Court to only strike down a law if it was the unanimous position of a full 11-justice panel. But even in such an event, the Knesset could re-legislate the law for a four-year period and then pass it as a permanent law after that.
Smotrich argued that the ability of the High Court to strike down legislation “transfers the right to have the last word in setting the laws of the state from the Knesset to the Supreme Court… which is undemocratic and illegal.”
The party platform vows that after such a law is passed it will push for legislation to allow “infiltrators ” — referring to asylum seekers and illegal migrant workers — to be expelled from the country; grant ultra-Orthodox yeshiva students exemption from military service; and retroactively legalize West Bank settlements built on private Palestinian land.
In other reforms proposed in the Religious Zionism program, legislation would be passed to prohibit the opening of a criminal investigation or the filing of an indictment against a serving prime minister or cabinet minister on matters relating to their professional duties.
Investigation and prosecution of such matters after the prime minister or minister has left office would be possible, however.
Members of Knesset would also be immune from criminal prosecution unless the Knesset voted to rescind that immunity, and the High Court would not be able to annul such a vote.
Further proposals include splitting the attorney general’s position into three roles, whereby the attorney general would serve merely as the government’s legal adviser and would also become a political appointee instead of serving as a member of the civil service.
The power to file criminal indictments would be removed from the attorney general position and given over to a “prosecutor general” who would be appointed by the justice minister and would have authority over criminal proceedings and prosecutions.
A third position, that of state representative to the legal system, would also be created to represent the state in court and in other, non-criminal, legal proceedings including petitions against the government in the High Court.
The Religious Zionism party’s program would also see the establishment of an oversight body to supervise the activities of the law enforcement investigative services and the state attorney’s office “to ensure that there is no improper use” of those powers.
The platform dismisses current oversight agencies as weak and lacking teeth and would create one umbrella organization under the authority of the justice minister and subject to the oversight of the Knesset Constitution, Law and Justice Committee.