Israel’s constitutional crisis explained

An unprecedented constitutional crisis is brewing in Israel. It is an emotionally charged arm-wrestle pitting the judicial system and its supporters against the executive branch of the government.

In addition, because of Israel’s political system, where the government is formed on the basis of a majority in the unicameral Knesset (parliament), the legislative branch in contemporary Israel is almost identical with the executive government.

This conflict has potential long-range implications on Israel’s international standing, economy and its very essence as a Jewish and democratic state.

The origins of the crisis

Since the 1990s, the power of the judiciary vis-à-vis other bodies governing Israel has gradually yet dramatically increased.

Under the leadership of the Chief Justice Aharon Barak (1995 to 2006), a constitutional revolution unfolded. Motivated by the self-perception of the courts as the defenders of human and civil rights in Israel in the absence of a written constitution, Barak believed that no issue should be outside the jurisdiction of the courts (“Hakol Shafit”).

Instead of a constitution, Israel’s Knesset has enacted a series of ‘basic laws’ over the years, which enjoy a higher status than regular laws. The Supreme Court began to voluntarily apply the power of judicial review to disqualify laws and government decisions based on what the court saw as compatibility (or lack thereof) with basic laws – a power which is not granted to the judiciary under any statute or other document which is part of Israeli law.

The Supreme Court also began to impose a ‘reasonableness test’ in many cases - a vague and subjective test to determine whether public officials acted (or were about to take actions) in a manner which is ‘appropriate’, and/or ‘reasonable’ and/or ‘proportionate’ in a certain situation.

The backlash

Over the years a counter-camp has emerged to this growth in judicial power and activism.

The Supreme Court has actually been fairly restrained in exercising its newly claimed power: refusing to intervene in government actions or political moves in nine out of 10 cases brought before it and disqualifying only a handful of laws - 22 since 1997.

Nonetheless, bitterness over the cases where the court has intervened has been building up in mostly right-wing and ultra-Orthodox circles.

The court, painting itself as defender of human rights, has sided in some instances with positions considered aligned with the Israeli left - for example, reversing a bill which sought to block Palestinians from seeking compensation from the Israeli army (2006).

Conservative groups also did not see eye to eye with rulings that overturned government decisions on incarceration or deportation of asylum seekers and/or illegal immigrants between 2013 to 2020.

Ultra-Orthodox communities have been angry over the court’s repeated disqualification of political compromises forged with regards to the growing number of young religious men exempted from conscription to the army (mandatory in Israel for all 18-year-olds) so they can concentrate on their religious studies, whilst receiving state stipends.

Trials of high-profile public figures have added social tensions to the anger against the judicial system.

The most important of these is the ongoing trial of current Prime Minister Binyamin (Bibi) Netanyahu, who is facing charges of fraud, bribery and breach of trust over three separate cases.

Also sparking anger has been the two convictions (in 1999 for fraud, bribery and breach of trust; and in 2022 for tax evasion) of Arie Deri, the leader of the powerful ultra-orthodox party Shas, which champions ethnic Mizrahi Jews (originating from Arab or north African countries).

Deri’s legal troubles have led to allegations of discrimination and racism by elite Ashkenazi (of European ancestry) Jews in the attorney-general’s office and among the top judges – including only recently, after the Supreme Court disqualified him from serving as a Minister in mid-January 2023. As a result, Netanyahu, who has a long and close partnership with Deri, had to reluctantly fire him from office (Jan 22).

Such cases have translated into resentment among segments of the Israeli population over what they see as overreach by a few unelected judges into the political realm, without any legal or democratic mandate.

The Judicial overhaul

Late last year, a government was finally formed in Israel, elected after four stalemated elections in less than three years.

Following a narrow win in the most recent election on 1 November, Netanyahu recaptured his long-term position as PM – he has served in this role longer than anyone in Israel’s history. His new government is considered by many to be Israel’s most right-wing and religious coalition ever.

Early in January 2023, incoming Justice Minister Yariv Levin moved quickly to introduce a proposed program of comprehensive judicial reforms.

Collectively, these reforms are seen by their many critics as both “politicisation of the judicial system”, and stripping Israel’s unicameral parliamentary government of almost all checks on its power.

The reforms include several steps that together are aimed at reversing the extended powers of the courts.

• Changes in the selection process for judges to ensure politicians will dominate the process instead of judges and lawyers. The reforms would give the government an un-vetoable majority within the Judicial Selection Committee and also allow someone not currently a Supreme Court Judge to be appointed the Court’s Chief Justice.
• Radically limiting the Supreme Court’s ability to overturn laws enacted by the Knesset – for example, banning courts from reviewing basic laws; and insisting regular laws can only be overturned by the Supreme Court when at least 80% of all 15 judges on the court vote for disqualification.
• An ‘overcoming clause’ allowing the Knesset to overrule a judicial decision by having a majority of parliamentarians vote against it. The original text of the plan calls for a regular majority (61 out of 120 MKs) to be able overturn a court decision. As noted earlier, since the government always has a majority of MKs supporting it, that would mean that almost any Israeli government would be able to schedule and pass a vote to overrule judicial decisions it does not like.
• Barring the use of the ‘reasonableness test’ as the basis for judicial decisions.
• Changing the status and powers of the legal advisors in Ministries and other government bodies. Currently these advisors are tenured career civil servants, but the reform would convert them to “positions of public trust” - employees subordinated to the minister who can hire and fire them. Ministers would also not be bound by their advisors’ legal opinions.

Protest and deep division

The opposition has angrily called Levin’s plan “the end of democracy” in Israel, and even floated civil disobedience as a legitimate response to it. Chief Justice Esther Hayut gave a fiery speech against the reform, while Levin replied by labelling the judges ‘a new unelected political party’.

Hundreds of thousands of Israelis have taken to the street across the country in protest on a regular basis. Leading right wing coalition members have made calls to arrest opposition leaders on charges of treason, while the hashtag #civilwar has started to gain popularity in Israel.

A battle over Israel’s essence

For both sides, this conflict has heavy implications for what they believe is the true essence of the State of Israel.

The pro-reform camp considers the courts a bastion of left-leaning elites who have taken it upon themselves to shape the state as progressive and secular, without any democratic public legitimacy behind them.

The opposition is extremely worried that the reform is a tool to aggressively create a religious, non-liberal state in which the powers of the government are effectively almost completely unchecked.

Many in the business sector and foreign policy experts are warning such a change would endanger Israel’s international standing – including especially its growing ties in the Arab world - and its thriving economy.

In recent days, attempts are being made to find a compromise - for example by President Isaac Herzog (in Israel the Presidency is a mostly ceremonial position, comparable to the Governor-General in Australia).

But the crisis is far from over, and constitutes a telling reminder of both the strong divisions within the Israeli body politic and the liveliness and intensity of Israeli democracy and the debates it produces.