Last night Prime Minister Netanyahu released a public statement calling for dialogue.

• Netanyahu said, “I hear the voices of the people. I hear those who are praising, and I also hear those who are concerned. When there are disagreements among us, it is possible and necessary to talk in order to reach agreements or at least reduce the disagreements among us. It is within reach.”
• He added, “Come and let’s talk, here and now, with neither pre-conditions nor excuses, so that together we might achieve broad agreement for the good of all Israeli citizens, and for the good of our country.”
• Leader of the Opposition Lapid responded, “Mr. Netanyahu. Now isn’t the time for phony slogans and spins. Instead of making statements to the media, call the president, tell him you are stopping all legislative processes and are beginning dialogue based on the president’s proposal. Citizens of Israel, I have no pleasant way to say this: Prime Minister Netanyahu is lying. We have been trying to hold talks with them for many weeks now. The President pleaded with them to stop the legislation and to engage in dialogue. The Americans asked them to stop the legislation and hold talks, and the entire people of Israel are asking the government to prevent a terrible rift in the people, to stop this frenzy and hold talks. Instead, they are pushing forwards with hasty, irresponsible and anti-democratic legislation, which seriously harms the economy and security.”

On Monday night the Knesset passed the first two bills of the judicial reform in their first readings.

• The first bill changes the composition of the Judicial Selection Committee to grant the coalition an in-build majority.
• The second amendment will prevent the High Court of Justice from either discussing or striking down basic laws.
• Both amendments passed by a 63:47 majority.
• The vote was conducted in a stormy atmosphere. During the vote, members of the opposition chanted, ‘Shame, shame,’ and cried out ‘against’ in unison each time a member of the opposition was called on to vote.  

Following the vote the public atmosphere remains tense and divided.

• Despite numerous calls for dialogue there is a significant lack of trust and currently no mechanism to bring the sides together.
• President Herzog had called to halt the process and facilitate dialogue, but his deadline to stop before the first reading has now passed.  Reflecting on the vote Herzog called out, “the grief that accompanies it is because of the danger to Israel’s unity.”
• Herzog continued, “I think it’s time to reach out and have a brave, open and honest conversation, because the price is not worth it. I think that the greater power, the greater national responsibility, is always in the hands of the people who govern and are leading the revolution or are leading the move. That’s why they need to think of ways in which they can build trust with the opposition.”
• According to the latest polling by the Israel Democracy Institute 66 per cent of Israelis think the Supreme Court should have the power to strike down a law if it is incompatible with the Basic Laws. Even among voters for the coalition 44 per cent support this idea.
• Regarding the Judicial Selection Committee, 63 percent of the public support the current balance that requires agreement between politicians and the judges. Among voters for the Likud party, only 39 per cent support the proposed changes.
• Channel 13 News ran a poll (less than three months after the last election), asking if elections were held today, which party would you vote for?  The Likud fell from 32 seats (they currently hold) to 27.  Overall, the current coalition would lose it majority receiving only 56 seats, whilst the last (Lapid-Bennett) coalition would have 55 seats. The Arab parties, Hadash-Ta’al and Balad, receive 9 seats between them.

Later today the Knesset is expected to vote in a preliminary reading on the override clause, a bill that would allow the Knesset to override High Court of Justice rulings by means of a 61-seat majority.

• There are also two other bills are also expected to be introduced today for a preliminary reading:
  • The so-called ‘Deri 2 bill’, which would prevent the High Court of Justice from intervening in ministerial appointments,
  • A bill that would subordinate the Police Internal Investigations Department to the justice minister and would allow it also to investigate state prosecutors.
• However, the coalition does not intend to push forward the two bills that it passed on Monday night so as keep the possibility of dialogue open.

President Isaac Herzog held a series of meetings last night at his private home in Tel Aviv with leaders of the opposition and one of the main proponents of the proposed reforms.

• He first met with Leader of the Opposition Yair Lapid. Following the meeting Lapid thanked the president for his efforts and highlighted, “the importance of reaching broad consensus and preventing a split among the people.”
• He then met with MK Simcha Rothman, the chair of the Constitution, Law and Justice Committee. He also thanked the president for, “his willingness to work day and night to reach broad consensus on repairing the justice system.”
• The final meeting last night was with MK Benny Gantz, the leader of the National Unity Party. He said afterwards, “I presented the president with the central tenets of the necessary reform. First, the legislation  must stop, the justice system must not be politicised and we must promote a comprehensive step that includes passing Basic Law: Legislation and arrange the balance between the branches.”
• Earlier this week Prime Minister Netanyahu met with Justice Minister Levin for four hours late into the night. However Netanyahu did not issue any statement, as formally he must avoid involvement in judicial reform due to a conflict of interests.

The sides agreed to meet with the president but not yet for direct talks. The opposition are demanding the legislative process be frozen to allow for talks, whilst the government has called for talks with no preconditions.

• The talks followed a mass protest rally outside the Knesset on Monday, which saw an estimated over 100,000 Israelis protesting against the proposed changes.
• On Sunday the president presented his compromise proposals. Some of which may be acceptable to both sides. For example, when it comes to legislating basic laws (which form the foundation of Israel’s unwritten constitution) they could agree to add a fourth vote. Three readings (like a regular law) by the incumbent Knesset and another in the Knesset that is elected after it.
• Another possible compromise relates to the courts use of “reasonability.” Instead of removing it completely its scope could be defined and reduced.
• There currently seems to be no consensus on changes to the makeup of the Judges Selection Committee, with the coalition continuing to demand changes that give the government a built-in majority. However, they could accept that one of the two public figures who sit on the committee be chosen by the president of the Supreme Court.
• Regarding the override clause, Rothman is so far unwilling to show any flexibility and is insisting on a 61-vote majority override clause.
• Behind the scenes there is speculation that not all Likud MKs agree with the proposed changes and although they are not speaking out publicly, they are also not defending it either.
• There is also concern over the economic impact of the changes.  The heads of Israeli banks warned Finance Minister Smotrich, “money is leaving Israel at a rate that is ten times faster than in normal times” and called for a halt to the reform legislation.
• Netanyahu has also sought to allay the fears of the big international banks, particularly how the reforms may effect Israel’s credit rating.
• Ultimately, despite his own legal predicament, it may be Netanyahu himself who will insist the proposed changes are moderated.
• In parallel the “second Deri bill” which prevents the courts ability to interfere on ministerial appointments is expected to be voted on later today.
• The first reading on two bills relating to the makeup of the judges selection committee and preventing the High Court to rule on basic laws, have been postponed till next week.
• Aides to the president have expressed “cautious optimism” that a compromise can still be found.

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.