Israel’s constitutional crisis


In a year that we should be celebrating Israel’s 75th anniversary, both Israelis and Zionists across the globe are more anxious about Israel’s future than at any time since the Yom Kippur War.

Many of Israel’s friends and supporters across the globe have raised concerns with the proposed changes, both due to the rushed and unilateral way in which the proposed changes are proceeding through the legislative process, and the substance of the proposed changes. Among the most prominent of those who have spoken out at the changes are President Biden, Alan Dershowitz, and a host of others who are unquestionably Zionist, together with many mainstream Jewish Community organisations. The Executive Council of Australian Jewry and Zionist Federation of Australia issued an unprecedented joint statement calling for a pause in Israel’s legislative blitz.

The judicial reform process
Regardless of whether one supports or opposed the proposed judicial changes, all agree that they are significant – even members of Israel’s coalition government have described them as “revolutionary”. Major changes which have a significant societal impact should be thoroughly debated, and adopted in a considered way which reflects a consensus. In New Zealand and Australia this is certainly the case. Changes to the Marriage Laws in Australia and New Zealand to recognise same-sex marriages are an example of significant societal change – in Australia the question was put to a national referendum, whereas in New Zealand the decision was made by Parliament, but passed with a significant majority (77 to 44) reflecting the consensus in New Zealand society. Likewise, amendments to the Bill of Rights Act, which affirms, protects, and promotes human rights and fundamental freedoms in New Zealand, requires a majority of 75% of Parliament.

In contrast, the changes being proposed by Israel’s current government can pass through the Knesset with a bare majority of 61 MKs. Furthermore, public debate and even debate in relevant Knesset Committees is being stymied. Government Ministers have called for leaders of the Israeli Opposition Parties to be jailed for incitement, protestors are routinely described as anarchists, Prime Minister Netanyahu equated judicial reform protestors in Israel with rioting settlers who committed a murderous rampage in the West Bank Village of Huwara in response to a terror attack. More recently, Netanyahu stated that Israel is facing 3 fights – Iran, Palestinian terror and the protests against judicial change. This is incitement against Israelis who are fearful that the government’s legislation is “misguided, brutal and undermines … democratic foundations” (in the words of President Herzog, who has been actively trying to encourage the parties to negotiate). 

The New Zealand Police Minister resigned recently after it was revealed that prior to becoming police minister, he had criticised the New Zealand judiciary and suggested that judges should impose harsher sentences for gang-related crime. In contrast, the current Israeli National Security Minister directly intervenes in Police operational matters and sought to have the Tel Aviv District Police Commander removed due to the police’s restraint at anti-government protests (the move was frozen by the Israeli Attorney General who questioned the legality of the decision). The Minister has also defended the conduct of a policeman who threw a stun grenade into a crowd of protestors leading to a protestor’s ear being blown off, and he is petitioning for the release of two settlers being held by the IDF in administrative detention on the recommendation Shin Bet, after reliable information came to light about their plans to carry out violent attacks against Palestinian citizens. 

Israel doesn’t have a constitution or an upper house, so although there are legitimate concerns that the Supreme Court has at times overstepped its role through activist decisions, fundamental changes to the relationship between the Knesset and the judiciary should be made carefully and without undue haste. Responsible governance means sweeping reforms of any sort must be broadly supported within Israel’s population. Rushing to approve laws that will overturn the Judicial system of Israel without a broad consensus, destroys confidence in the government. 

Rabbi Sachs Z”L spoke about social covenants – the shared ideas and values which bind citizens of a state together. A majority of Israeli citizens fear that the proposed changes are a fundamental breach of the ideals on which the State of Israel was founded. Recent polls indicated that 72% of Israelis want a compromise to be reached, 66% think the Supreme Court should retain the power to strike down laws and 63% of Israelis think the current method of appointing judges should stay as it is. The High Court is seen as the only avenue available in Israel to provide checks and balances to the Knesset, and changing this without broad consensus is not consistent with the mandates on which the current government was elected, being security and cost of living. If anything, the government’s strong focus to date on the judicial changes has damaged Israel’s security and adversely impacted the cost of living.

The Israeli government’s response to claims that the proposed changed will give the executive too much power has been to say “trust us”, yet many Israeli citizens view the wide range of proposed legislation and policies as paving the way for the extreme members of the government coalition to proceed with marginal, ideologically-driven policies. The normal checks and balances which would operate within such a coalition also seem to be absent, as coalition parties are trading reciprocal support for each of their marginal positions and Netanyahu doesn’t appear to have the political strength or willpower to stop this “horse trading” and ensure responsible government. By way of example, one of the bills proposed by the Shas Party, would make it a criminal offence punishable by up to six months in prison for dressing immodestly at the Western Wall or praying there in a manner not recognised by the Chief Rabbinate. A far-right MK in the government who leads an anti-LGBQT faction has been appointed as an overseer of external programs in schools. These are two of many examples, but they surely show that checks and balances are needed in the Israeli system of government. 

Winning the election does not give the government a carte blanche mandate to implement any policy it wishes. Although the current Israeli government coalition has a relatively large majority in the Knesset (64 out of 120 seats), this was partly achieved due to the electoral threshold of 3.25%. Parties can form electoral alliances, and in the last election, right wing parties utilised this more effectively, whereas the left wing Meretz Party (potential alliance with the Israeli Labor Party) and another Arab party, both failed by small margins to reach the threshold. So in reality, the government majority, whilst completely legitimate, doesn’t reflect the actual proportion of the Israeli population which voted for it.

The overhaul has caused unprecedented concern across Israel’s financial, business, security and academic sectors. Many senior and specialised army reservists (pilots, doctors, cybersecurity and members of other elite units) have stated that they will cease to attend reserve duty for training whilst the proposals continue in their current form. This isn’t merely a protest action, but reflects their concern that a strong and independent Supreme Court protects them from being prosecuted as individuals by the International Criminal Court due to their actions in defending Israel. The Defence Minister privately raised these concerns with Netanyahu and asked for a pause in the legislation, but was ignored. When Gallant publicly called for a pause in the legislative process on the grounds that the societal rift caused by the judicial changes constitutes a tangible threat to Israeli national security, he was publicly fired by Netanyahu. At this moment his termination has neither been retracted nor formalised, so remains in limbo. 

Israeli and foreign corporations, and individual citizens, have been withdrawing currency from Israel due to fears that the legislative changes will have a significant impact on Israel’s economy and lead to a fall in Israel’s credit rating – fears backed up by statements made by Moody’s, Fitch Ratings and S&P, which have said that such reforms threaten Israel’s relatively high credit rating. Yet there have been calls within the government for the sacking of the Bank of Israel Governor for expressing concerns about the economic impact of the overhaul. 

The proposals will make it more difficult for Israel supporters and advocates to defend Israel against baseless, racist and antisemitic slurs which are made everyday in New Zealand, Australia and across the globe. This is important work that people in our community undertake selflessly  as volunteers day after day, exposing themselves to personal attacks. Yet Noa Tishby, former Special Envoy for Combating Antisemitism and Deligitimisation of Israel, who has been such a strong advocate for Israel in social media and other forums, was dismissed from her unpaid role after she publicly stated concerns about the judicial reforms.

Substance of the proposed changes
The judicial overhaul is a package of bills, all of which need to pass three votes in the Knesset before they become law. Several of them have passed their first readings, and could potentially be finalised when the Knesset resumes at the end of this month after the Pesach recess.

The most contentious bill is to give the government a majority of the seats on the nine-member committee that selects judges. Currently the Judicial Selection Committee is comprised of 3 judges, 2 representatives of the Israeli Bar Association and 4 politicians, balancing power between political and professional bodies. Appointment of a Supreme Court Judge requires agreement of 7 of the 9 members, and 5 members must agree on appointments of lower court judges. The proposed panel will give 3 seats to ministers, 3 to MKs, 1 to the Supreme Court President, and the justice minister will choose 2 additional judges, transferring judicial appointments into political control. The Supreme Court President will be appointed by the justice minister, rather than the current convention by which the longest-serving judge is designated when the outgoing president completes his or her term.

Another bill would block courts from being able to strike down Knesset laws, provided that they include an immunity clause stating that the law can’t be challenged on the basis of violating a “Basic Law” (fundamental laws in Israel which provide freedoms such as those contained in the NZ Bill of Rights). It is proposed that such laws would be able to gain immunity from Supreme Court revision simply by passing with a bare majority of 61 MKs. Alan Dershowitz considers the ability of the Supreme Court to have oversite on the Knesset as being one of the key factors which makes Israel’s democracy better than many other countries, as the Supreme Court has enforced basic minority rights even when a temporary majority has sought to violate them.

Another significant element of the changes is known as “the override clause”, which would give the Israeli parliament the power to pass laws previously ruled invalid by the court, essentially overriding Supreme Court decisions. This is proposed to require a bare majority of 61 MKs. This proposal will be more palatable if it requires a larger majority of say 75 or 80 MKs, which would at least ensure a broader consensus has been obtained.

Many of the other proposed laws are also contentious, such as the “Deri 2” Law which would end court discretion over ministerial appointments. This is part of an explicit effort to return Shas leader Aryeh Deri to the Cabinet. Deri has been convicted on multiple occasions over several decades of charges involving fraud, embezzlement and corruption. Last year he was convicted of tax avoidance offences, but was given a suspended sentence as part of a plea bargain. The Supreme Court ruled that his appointment as Minister was “unreasonable in the extreme”. This is something which is hard to imagine could occur in New Zealand or Australia, as its almost inconceivable that a government would seek to include a recently convicted (and recidivist) criminal as a Minister. A separate bill proposed would have the effect of protecting Netanyahu from prosecution for the current charges he faces. 

An optimistic note
The positive side of the last few months is that Israel’s democracy as it stands is strong, and the government’s actions have led to mass protests week after week, which have been largely peaceful. This has been a grassroots reaction which shows how much Israelis care about their country. The main icon in the protests is the Israeli flag, and when the Histadrut labour union called a press conference to announce a strike across multiple sectors in response to the firing of the Defence Minister, participants in the press conference sang the Hatikvah. Zionism in Israel remains strong – and not just amongst the national religious segment of the population.

In recent days Israel’s security situation has changed, as so often happens. Surely that ought to be the primary focus of this government, not dividing Israeli society through judicial reform? 

In our Seder, we dedicated the first cup of wine to freedom and democracy in Israel. It reminded me of my childhood, when we would raise a cup to freedom of Soviet Jews. It’s fitting to end this article with a quote from Natan Sharansky, former dissident, government Minister, Likud MK, and Jewish Agency Chairman, who knows a thing or two about persecution of minorities within a society.

Democracy is two things together — majority rule and human rights which cannot be cancelled by any majority….

It is important for the Knesset to have the last word in political decisions, and for the Court on decisions related to human rights.

  • Jeremy Levy is a lawyer based in Australia, with roots and family in New Zealand.