Israel’s new coalition government is committed to a programme of wide-ranging judicial reform designed to limit the power and independence of the Israeli judiciary. The speed and intensity with which the process has begun has proven hugely contentious and divisive, with Israel riven by dispute and fracture regarding the issue.

However, although the current crisis is unprecedented, it can be understood as the culmination of long-held Israeli differences on the proper role of the judiciary.

Arguments over Judicial Reform
Both reformers and their opponents assert that theirs is a campaign for the salvation of Israeli democracy.

Reformers have long argued that a democratic deficit is produced by an unelected judiciary capable of overruling the decisions of democratically elected politicians. They claim that since the so-called “judicial revolution” of the Supreme Court under Chief Justice Aharon Barak in the early 1990s it has been engaged in “activist” overreach. Examples given often include: judgements made in 2012 and 2017 ruling that compromises reached with ultra-Orthodox parties over the question of ultra-Orthodox service in the IDF breached principles of equality; decisions from 2013, 2014, and 2015 overruling government legislation concerning the detention and eventual resettlement of illegal migrants and asylum seekers; a 2020 ruling against the retrospective legalisation of illegal West Bank settlements on the grounds that such would constitute harm to Palestinian property, equality and dignity.

Although the Supreme Court has overruled only 20 laws out of around 1300, the nature of some of the issues concerned in such rulings led to an anti-court convergence of interests among the ultra-Orthodox, settlers, and other right-wingers. This is despite the fact that court has, on occasion, intervened in a fashion more likely to please the right-wing than the left; as, for example, in 2005 when it ruled in favour of increasing compensation for settlers evacuated following the disengagement from Gaza and some areas of the West Bank. Reformers also allege that the low figure of Supreme Court interventions is deceptive, and that the self-perpetuating domination of left-wing opinion from both judges and government legal advisors has prevented right-wing governments from even floating desired legislation, so sure are they that it would be prevented by the legal establishment.

Another complaint has been that the Israeli judiciary, and the legal establishment more broadly, functions as a self-elected and self-perpetuating “club”, whose membership is largely restricted to a liberal, Ashkenazi “elite”, and that wider participation is urgently needed to reflect the diversity of Israelis and Israeli opinion.

Opponents of the government’s proposed reforms, some of whom agree with the need for judicial reform in principle or in moderated form, argue that Israel’s democratic culture is unique. Israel possesses no second chamber, nor a written constitution, and the list system (which concentrates power over MKs to party leaders, as opposed to their being parliamentarians answerable to their constituency) ensures that the executive is generally able to exercise de facto control over a majority of the Knesset.

In this context, reform critics claim that the existing system provides for a vital separation of powers and that an independent judiciary, with partial capacity for overruling the legislature and executive, provides a crucial brake on executive power and functions as an essential guarantor of liberal democratic norms and minority rights. The system proposed by the reformers, they fear, provides for the tyranny of the majority, and a blank cheque to this and future governments, of whatever political orientation.

Critics also note that the high esteem in which Israel’s independent judiciary is held internationally functions as a protection on Israelis from subjection to the authority of international courts, and that weakening the judiciary would also weaken this protection.

The Government’s Moves
In early January 2023, Justice Minister Yariv Levin – a Likud MK and long-time proponent of judicial reform – announced the government’s reform agenda. The Knesset’s Constitution, Law and Justice Committee, chaired by Religious Zionism MK Simcha Rothman, then proceeded to deliberate on and refine the details of Levin’s broad proposals. It now plans to roll out a multi-stage judicial revolution. The first elements have progressed sufficiently to hold a first committee vote concerning the makeup of the committee to appoint judges and the Supreme Court’s ability to strike down “Basic Laws” (laws holding quasi-constitutional status).

The reformers are pursuing greater political power on the Judicial Selection Committee, which appoints judges at all levels of the Israeli judicial system. At present the committee is composed of nine members: two government ministers; two other Knesset members; three Supreme Court justices; and two representatives of the Israel Bar Association. For the election of new Supreme Court justices, a majority of seven is required for a confirmation.

Under the proposed new version, the Judges Selection Committee will remain comprised of nine members, but its makeup altered to: the Supreme Court President; two retired justices appointed by the Justice Minister with the approval of the Supreme Court President; the Justice Minister; two other ministers to be determined by the government; the chairman of the Constitution, Law and Justice Committee; one MK from the governing coalition; and one MK from the opposition. Additionally, the majority needed to approve the appointment of a Supreme Court judge will be reduced from seven to five. On February 8th 2023, opposition members succeeded in “running out the clock” on the committee, delaying a first vote on the Judicial Selection Committee and Basic Law reforms until the next week, allowing time for the organising of a mass protest the following Monday.

The next phase in the Constitution, Law and Justice Committee’s reform schedule will involve composing legislation stating that for the Supreme Court to disqualify non-Basic Laws, all fifteen justices must hear the appeal and vote unanimously in favour. After that, the next reform is set to concern the establishment of a Knesset override of Supreme Court decisions. At present, no such parliamentary override exists, and while moderate reformers have long suggested that a safe override could be implemented requiring, for example, two thirds of MKs or a certain percentage of opposition MKs to vote in favour, at this point the government is pursuing an override by a “simple majority” of 61 MKs.

Later reforms will include an alteration of the independent status of legal advisors to government ministers. At present, ministers are bound by the legal interpretation of their legal advisors. The new law would allow ministers to appoint their own legal counsel with a limited advisory role. The abolition of the Supreme Court’s ability to overrule administrative decisions of the government on the grounds of “(un)reasonableness” will also be pursued. (The court cannot strike down Knesset legislation on these grounds.)

The government and Supreme Court clashed on the reasonableness question early after Levin’s announcements, with justices voting 10-1 to bar Shas leader Aryeh Deri from being appointed Finance Minister. The judges’ decision was based partly on the reasonableness principle, and partly on their conclusion that Deri had lied to the Israeli magistrate’s court when accepting a plea deal for a 2021 financial conviction which included the guarantee that he would retire from public life. The verdict required that Netanyahu fire Deri, though coalition figures pledged his return and argued that the appointment of cabinet members is a perfect example of court overreach of on matters that should be the sole purview of the government. Deri’s return could conceivably be facilitated by removal of the grounds of reasonability, but the barring of striking down Basic Laws could, if applied retrospectively, also be used. In late December 2022, Basic Law: The Government was modified to allow for a convicted felon to serve as a minister as long as their offence had not been punished with a custodial sentence.

Backlash to the Reforms
Opposition to the proposed reforms has been intensive since Levin’s announcement. Regular protests have been held on Saturday evenings throughout January and early February, while a number of high-profile Israelis have made public interventions. And, while pushback from Supreme Court chief justice Esther Hayut and from the political opposition was to be expected, the variety of sectors of Israeli society from which reform critics have been drawn has also been striking.

Bank of Israel Governor Prof. Amir Yaron warned Netanyahu in late January of the likely negative economic impact of the reforms, citing a probable decline in foreign investment and damage to Israel’s international credit rating. His warnings came days after two of his predecessors, Karnit Flug and Jacob Frenkel, had made similar predictions. Israel’s hi-tech sector – responsible for some 15% of GDP – has also baulked, en masse, and become an influential element in the protest movement. Nine prominent hi-tech firms, including WIZ, Papaya Global, Verbit, Disruptive, and Skai have announced withdrawal of operations and funds worth billions of US dollars from Israel. Hi-tech workers have already joined protest walkouts, while over 200 companies are expected to follow venture capital firm TLV Partners’ lead in allowing employees to strike next Monday.

Medical professionals have also joined strikes; during one walkout in late January, Sheba Hospital was the only Israeli hospital operating at full capacity. Meanwhile, protests by IDF reservists have been joined by a number of formerly high-ranking officers, including former Mossad head Tamir Pardo, former IDF Deputy Chief of Staff Matan Vilnai and Maj. Gen. (res.) Tal Russo. Moshe Yaalon, Ehud Barak, and Yair Golan – all former generals as well as political figures – have been at the forefront of opposition to the reforms. In a column published by Yediot Ahronot, Barak called on Israelis to engage in unprecedented levels of protest in the coming days, even suggesting that opposition MKs commit to a hunger-strike. Dozens of former Directors General of government ministries, as well as significant numbers of civil society organisations have also been vocal in opposition. Israel’s closest international allies, too, have signalled their concern.

The Process Moving Forward
The initial vote of the Constitution, Law and Justice Committee on the two concrete elements of the reforms will occur next week to be followed, if affirmed, by a Knesset plenum vote on a first reading. The government’s majority in both the committee and the plenum means that an affirmative vote is certain in both cases; the best the opposition can do is to use procedural motions to delay, though they might decide that boycotting the vote is a more powerful means of symbolising their disdain.

While the usual Saturday protest will continue – including, in an unprecedented development, in the Etzion bloc settlement of Efrat – larger demonstrations are likely to be seen on Monday, outside the Knesset. Large-scale strikes are expected, though Israel’s largest labour union, the Histadrut, has so far not committed itself. Its reasoning is that judicial reform is not a labour issue, while it also remains locked in delicate negotiations with the government over a public sector pay-rise.

President Isaac Herzog has sought to pursue a mediating function, warning of the possibly irreparable damage to the unity of Israeli society if the divide over judicial reform continues. He has suggested forming a cross-parliamentary committee to consider alternative reforms more representative of an Israeli consensus, though his efforts have so far proved unsuccessful. Hayut has made similar suggestions, with the crucial caveat that any changes only become effective from the next Knesset.

Some retain hope that Netanyahu – in the past a vocal supporter of an independent judiciary – will opt to moderate the reforms after the first Knesset reading. He is, however, under pressure from within the coalition to stand firm. Senior United Torah Judaism party figures have been quoted as threatening to withdraw from the government if Netanyahu either backs down or else agrees to concessions which significantly alter the content of the reforms. While such a threat should be treated with scepticism, it is reflective of the strength of feeling from within the other factions in the coalition. Meanwhile, Attorney General Gali Baharav-Miara, another critic of the proposed reforms, has argued, by letter to the Prime Minister, that his involvement with judicial reform is a conflict of interests given his ongoing personal legal case.

Levin has stated that these reforms are only the first stage. Speculation abounds that future reforms could include removing automatic seniority of the President of the Supreme Court, lowering the retirement age of judges, and the splitting the role of the Attorney General

For the fifth consecutive week, tens of thousands of Israelis demonstrated at multiple locations across Israel on Saturday night, protesting the judicial reform being advanced by the government.

• Once again, the main demonstration was held on Kaplan Street in Tel Aviv. According to organisers, around 100,000 people turned out to demonstrate, despite the inclement weather.
• One of the key speakers was Tel Aviv Mayor Ron Huldai, who told the crowd: “We are determined to continue to fight for the State of Israel’s image. They’re trying to frame us as being out-of-touch instead of listening to our principled positions. I want to warn the government: if you take things to the extreme, you’re liable to produce extreme counter-reactions. This is an opportunity to reach broad agreements, and if the words end, actions will begin. We won’t be indifferent. We won’t respond with acceptance.”
• At a second rally in Tel Aviv organised by the Movement for Quality Government at Habima Square, the former police commissioner, Roni Alsheich, related to the proposed reform, saying: “This plan doesn’t contain a single element that is designed to correct. They’re trying to remove all of the checks and balances today at once. All the power is to be given to the executive branch without any constraints. Things that are illegal will become legal within days and, if need be, they’ll be enshrined in a basic law. The proposal is a regime coup, nothing short of that. As an observant Jew I have to admit that there isn’t anything Jewish about what is being proposed at present.”
• Yesterday, President Isaac Herzog called on the government to, “Stop the whole process for a moment, take a deep breath, allow dialogue to take place, because there is a huge majority of the nation that wants dialogue.”
• He also called on opponents of the judicial reform to stop their incitement and threats.
• Justice Minister Levin’s responded bluntly to the President on Channel 13: “Let there be no doubt, we will not suspend the legislation for even a minute.”

The government is prioritising judicial reform, as a consensual issue shared by all the coalition partners.

• Both reformers and preservers are claiming to defend democracy. For the reformers it means giving extended power to elected representatives. For the protestors it’s about keeping checks on the absolute power of the majority.
• Last month Justice Minister Yariv Levin outlined stage one of his reform proposals which include:
  • An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
  • To alter the committee that selects judges, giving politicians more control.
  • Abolishing ‘reasonability’ as grounds for the court to cancel government decisions.
  • Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers.
• President Herzog has suggested forming a cross-parliamentary committee, so that any changes can be moderated and receive wider consensual support. So far he has been rebuffed by both sides.
• Herzog was referring to various incidents of incitement posted online over the weekend, including a 76-year-old retired air force colonel Zeev Raz who appeared to endorse a post calling for the assassination of Prime Minister Netanyahu.
• In addition, former prime minister Ehud Barak shared an image comparing Herzog to prime minister Neville Chamberlain, as if his calls for dialogue with the government was the equivalent of appeasement of Hitler.
• Also over the weekend J.P. Morgan, along with Barclays Bank issued new forecasting assessments that the proposed judicial reform might have a negative impact on Israel’s economic growth and its credit rating.
• Prime Minister Netanyahu will dispatch his key ally Minister for Strategic Affairs Ron Dermer to engage with the banks and credit agencies. This type of dialogue is usually handled by finance ministry officials, but due to the sensitivity Dermer – who earlier in his career served as economic attaché at the Israeli Embassy in Washington – is expected to deal with this issue.
• Netanyahu was in Paris this weekend. Following his meeting with President Macron he met with about 60 business and corporation executives who claimed control a combined total of about €150 billion. “What they are saying about ‘investor flight’ is rubbish. We want to increase investment in Israel,” Netanyahu told them.
• However, more prominent economists, including Nobel Prize and Israel Prize laureates, added their signatures to the more than 300 others who had already signed a public warning about the economic damage that the proposed judicial overhaul might cause.
• In addition, over 50 CEOs of retail chains and large companies in Israel sent a letter yesterday to the political leaders calling for dialogue on the proposed reforms

This week, the Knesset Constitution, Law and Justice Committee will continue deliberations on the reforms. The objective of the committee chair, MK Simcha Rothman is to pass the entire reform by the end of the winter session in another two months’ time.

• Some analysts have predicted that only after the bill passes in its first reading in the Knesset will genuine negotiations begin, which could include mediation by President Herzog.
• The government also plans to introduce “the second Deri bill,” which will claim that the court can have no judicial oversight over the appointment of ministers. The aim of the bill is to allow Shas leader Aryeh Deri to be reinstated as a minister.

What happened: Fallout continues from the High Court’s decision on Wednesday, by a vote of 10-1, to bar Shas leader Aryeh Deri from serving as a minister.

• The decision affirmed that allowing Deri to serve would be both “unreasonable” and in violation of the legal principle of estoppel.
• The court did not vote to strike down the amendment itself, passed recently in the Knesset to Basic Law: Government, which intended to allow for Deri to circumvent the bar on those with a criminal conviction serving in cabinet on the grounds that his second, most recent conviction, did not involve “moral turpitude”.
• The dissenting judge, Justice Elron, made clear that he was not voting to uphold Deri’s appointment; rather that he felt advice should be sought from the chair of the Central Elections Committee.
• Shortly after the decision was announced, Prime Minister Benjamin Netanyahu drove to meet with Deri at his home. In his first statement after the announcement, Deri was defiantly promising to find a way to continue to serve: “When they close the door on us, we’ll get in through the window. When they close the window we’ll break through the ceiling, with God’s help.”
• On Thursday, Attorney General Gali Baharav-Miara wrote to Netanyahu demanding that, in light of the court’s decision, he fire Deri from his roles as Interior and Health Minister.
• Coalition members are angrily citing the court’s decision as evidence of the need for judicial reform. Shas officials are also stoking the flames of a Sephardi-Ashkenazi divide, by asserting – without evidence – that the court’s decision had sectarian motivations.

What comes next? The most likely outcome seems to be that Deri will either resign or be fired by Netanyahu. The government will then move for a future reinstatement of Deri by pressing ahead with its efforts at judicial reform, which include the removal of the grounds of reasonability as justification for the court intervening.

• Reports this morning indicate that should Netanyahu equivocate, the Movement for Quality Government is planning to file a legal petition ordering him to fire Deri immediately.

• Deri’s willingness to consider this course remains unclear, however, and he told a Sunday Shas meeting that he would not resign in the event of an adverse court decision.
• Nor would judicial reform necessarily smooth his return. The court was careful to invoke another legal reason in its ruling, alongside reasonability. Deploying the principal of estoppel, the court upbraided Deri for going back on his commitment to the magistrate’s court, as part of his plea deal in his most recent conviction, not to seek further involvement in public life.
• Five of the judges – including three recognised as the court’s most conservative – cited this principle as decisive. Court President Hayut declared that Deri’s dissimulation in this regard “reinforced the conclusion that this appointment clearly crosses the line.”
• This factor complicates Deri’s potential return, since revocation of the court’s reasonability prerogative would not be sufficient to overturn its ruling. Estoppel, meanwhile, is a foundational principle of Israel’s legal system, and attempts to remove it would be risky in the extreme.
• Some cabinet members, such as Jewish Power’s Amichai Eliyahu and United Torah Judaism’s Yisrael Eichler are calling on Netanyahu simply to ignore the court’s decision. “The High Court has no right to demand that it be obeyed — it’s a dictatorship like Putin,” Eichler said on Thursday. This is a minority view in the cabinet, however, with Likud members resigned to Netanyahu having to comply with the law as it stands before trying for reform.
• Deri’s removal, whether by resignation or sacking, would bring its own immediate complications. By default, his health and interior briefs would pass to Netanyahu. However, Netanyahu is himself under indictment in three cases and is thus also barred from holding a ministerial portfolio.
• Channel 12 reported a proposal that Deri replace Knesset Speaker Amir Ohana, who would then assume a cabinet role. The role of speaker would likely not face the same legal challenges, were Deri to be appointed, as a cabinet role. Deri, however, is said to consider the position too junior.
• Some reports have speculated that Deri might consider appointing his son Yanki to his cabinet roles in in his stead. Yanki appeared to inflame these suggestions when he tweeted “No stranger will sit in his seat.” More likely scenarios are that former Covid commissioner Moshe Bar Siman Tov and former Shas minister Ariel Attias will be appointed health and interior minister respectively.
• Some ministers have reportedly proposed a scenario whereby Deri be appointed alternate prime minister, a role which, they hope, might give him greater freedom from judicial oversight. Reports this morning suggest that this is now Deri’s preferred option.
• The role of alternate prime minister was created by the Netanyahu-Benny Gantz government in 2020 and also used by the Bennett-Lapid government. Netanyahu had pledged to scrap it, arguing that a nation must have only one leader.
• Deploying this gambit to retain Deri would be hugely complex and risky. The government would have to move for a no confidence vote in itself, before than presenting a new power-sharing government. Netanyahu is not keen for anyone to hold this position again.
• Also, since the High Court has never ruled on the question of a person with a criminal conviction serving in the still new alternate prime minister role, it is likely that opponents would file a case requesting that it do so.
• Another option said to be being mulled by Netanyahu is to strip Deri of formal ministerial position but keep him close to the decision-making process by appointing him an observer to the security cabinet and retaining him in the informal “kitchen cabinet” of close confidants to the Prime Minister. Whether this would satisfy Shas members remains to be seen. “Netanyahu knows that if Deri isn’t in the cabinet, there’s no government,” welfare minister Yaakov Margi threatened shortly before the verdict was announced.

Looking ahead: the addition of the estoppel complicates the coalition’s plan to reinstate Deri once judicial reforms are passed.

• The court’s decision is likely to further intensify the already high tensions between the coalition and the judiciary and further exacerbate the rancorous split in Israel between supporters of the coalition and its reforms and their opponents.
• More protests against the government are planned for tomorrow night, with organisers suggesting the possibility of an even larger demonstration than last Saturday’s, which saw 80,000-100,000 people attend.