Israeli Government Passes Monumental Judicial Reform

Israeli Prime Minister Benjamin Netanyahu pushes forward judicial reforms aimed at weakening the Supreme Court's power to overturn legislation (Chabad Lubavitch, Wikimedia Commons)

In late July, Israel’s legislative body, the Knesset, passed key legislation abolishing the Supreme Court’s “reasonableness doctrine”—its ability to strike down laws it deems “unreasonable.” The judicial reform is highly controversial and emblematic of a larger left-right divide in Israeli politics, provoking mass protests in what the BBC describes as “one of the most serious domestic crises in [Israeli] history.”

What Does the Judicial Reform Do?

The Law to Cancel the Reasonableness Clause does exactly what it implies: it eliminates the Israeli Supreme Court’s ability to strike down legislation. Recently, the Supreme Court has used the Reasonableness Clause to overrule select executive appointments, such as the appointment of Aryeh Deri to the post of Finance Minister, citing Deri’s various convictions of bribery and tax fraud. Within the past 30 years, it has also struck down 22 laws in what opponents label an overreach of judicial power, but what supporters call a healthy check on government power.

Why Is the Judicial Reform So Controversial?

As a parliamentary system, where the legislature (Knesset) and executive branch (the prime minister) are closely intertwined, particular emphasis is placed on Israel’s Supreme Court as the main check on legislative and executive power. Rather than being directly elected by Israeli citizens, the prime minister is a chosen party leader from the Knesset who is best able to form a coalition government. This selection process limits the ability of the executive branch to act as a strong check on legislative power, leaving this responsibility to the judicial system. This reliance on the judicial system raises the stakes for many opponents of the judicial reform, who maintain that the limitation of the Supreme Court’s power by the Knesset endangers Israel’s democratic foundations.

Proponents of the reform, however, maintain that the Law to Cancel the Reasonableness Clause appropriately modifies the power the Supreme Court, an unelected body, has over the elected Knesset. They also criticize the subjectiveness of the reasonableness clause, especially as the concept of “reasonableness” has not been officially defined in Israeli law. Polls by the Jewish People Policy Institute report that some measure of judicial reform—large or modest—is generally popular and supported by 84 percent of Israelis. However, the judicial overhaul policy proposed by Prime Minister Benjamin Netanyahu—which includes the cancellation of the reasonableness clause along with even further judicial limitations, such as giving the government greater oversight over the appointment of judges—is only supported by 22 percent.

The increasing controversy surrounds the fact that Israel lacks a formal constitution; its civil liberties are enshrined instead in its Declaration of Independence, and the nation functions under a collection of basic laws that are regarded with semi-constitutional status. As a result, Israel lacks much of the restrictions and formal processes required in many constitutional nations to enact the type of sweeping reforms in contention this year. Netanyahu and his coalition government passed the judicial reform in late July with just 64 seats in a 120-seat Knesset, prompting the White House to express its disappointment that “major changes in a democracy… took place with the slimmest possible majority.” Netanyahu’s decision to push the legislation through the Knesset without compromise has contributed to mass outrage.

Anti-Reform Protests

In the days leading up to the Knesset vote, scenes from Tel Aviv and other major cities depicted seas of Israeli flags as protestors in the hundreds of thousands took to the streets. In one notable protest, a two-mile-long column participated in a five-day march to Jerusalem, garnering international attention. In addition, thousands of military reservists announced they would not report for duty, potentially jeopardizing Israel’s national security. Alarmed, a number of former military chiefs responded in a letter urging Netanyahu to postpone the reforms, citing the risks of a reduction in military capacity due to the protests.

Even after the Knesset passed reform legislation, protests continued in West Jerusalem. After hearing the results of the Knesset’s session, protestor Talya Miron-Shatz summed up the despair shared by many when she admitted, “I am not sure what to do, but I can’t take this lying down,” and “I think whoever voted for this did a terrible thing to their country.”

The intensity and scale of the protests that engulfed Israel in the days leading up to the Knesset’s session resulted in part from the fact that the legislation was a primary issue of contention amid a broader divide between Israel’s liberal-leaning, largely secular left and more religious, nationalist right factions. Already part of the most conservative government to date, Netanyahu’s move represents the broadening power of the right-wing executive and legislative branches. Many factions of Israel’s left, such as universities and trade unions, perceive the judicial reform as opening the door for a broader shift within the Israeli government and society to conservatism and religion, spearheaded by Netanyahu’s government.

What’s Next?

Israel’s contention over judicial reform is far from over—the legislation to cancel the reasonableness doctrine constitutes only the beginning of a larger program proposed by Netanyahu to decrease the power of the Supreme Court, including eliminating the Court’s ability to rule on the legality of the Basic Laws and giving the government a larger influence on the appointment of judges. Due to mass protests in late July, Netanyahu announced he would delay the rest of the provisions of his judicial overhaul to late November. As the negotiation period approaches, Israel appears poised for further ideological divide as the nation grapples with critical questions over government oversight, democracy, conservatism, and nationalism.