https://www.lawfareblog.com/current-state-play-israels-constitutional-showdown
The Current State of Play in Israel’s Constitutional Showdown
Despite strong opposition inside the Knesset and outside—on the streets—and a blizzard of critical statements by experts and policymakers inside and outside Israel, the legislation is advancing. On Feb. 20, preliminary votes on two aspects of the package (judicial appointments and denying the Supreme Court’s power to review basic laws) were held in the Knesset plenary. Following their initial passage, they were sent back to the committee—pushing Israel a step closer to an unprecedented constitutional crisis.
The hearings in the Knesset Constitution, Law and Justice Committee have been largely chaotic, with the opposition boycotting some sessions and clashing repeatedly with the committee’s chair, Simcha Rothman, in other sessions. Rothman has, in response, used his powers generously to eject disruptive members of the opposition. He has also manifested his own dominance in the committee, giving himself an exceptional amount of floor time to discuss his proposals and putting his ideas on the agenda for committee discussion. Some estimates show that Rothman spoke 35 percent of the sessions’ time (more than all opposition members combined). Indeed, much of the chair’s speaking time was spent arguing with experts testifying before the committee against the planned reforms.
The hearings have also been characterized by severe tensions between the chair of the committee, on the one hand, and the Knesset legal advisers on the other. Rothman plans to use the committee’s own power to initiate legislation of basic laws to expedite the passage of his proposed legal reforms, since the other legislative avenues—a governmental bill or a private bill—take more time to process according to Knesset procedures. Knesset chief legal adviser Sagit Afik, however, opposed the inclusion of certain parts of the reform package dealing with the binding effects of legal interpretations provided by government legal advisers in a draft basic law. She noted that this matter, which relates to the operations of the executive branch, should be advanced by the government after an internal process of the deliberation, and not by the Knesset committee, and opined that the issue is too specific to be included in a basic law to begin with.
With regard to other parts of the reform, Knesset legal advisers allowed Rothman to use the procedure of a committee proposal to advance them through the committee. Still, they objected strongly to the substance of these proposals—regarding them as extreme in their effects and incompatible with basic democratic principles, including democratic checks and balances. They also criticized the intent to apply these proposed reforms, should they pass, to the present Knesset notwithstanding that these proposed reforms constitute a change of the constitutional “rules of the game” and, thus, according to tradition, should apply only to the government established in the next Knesset. Rothman refused to follow this latter advice and accused the committee’s legal adviser, Gur Bligh, of being biased in his approach to the draft legislation. This exchange mirrors the very tense exchange between Minister of Justice Yariv Levin and Deputy Attorney General Gil Limon on the first day of the committee hearings. Hence, the coalition is clashing head on and at full speed—not only with the opposition but also with the legal advisers who are supposed to support its work.
Compromise Proposals
Up until now, Levin and Rothman have rejected all requests—including from President of the State of Israel Yitzhak Herzog—to suspend the legislative process and enter into negotiations with the opposition or to a process of consultations with the president of the Supreme Court and the attorney general. They claim that the Knesset process is the primary place where the reform package ought to be negotiated and accuse the opposition of failing to present any counter proposals they may have and for using delay tactics. At the same time, the opposition and the president of the Supreme Court have been reluctant to negotiate changes in the planned reforms in the highly charged atmosphere of polarized Knesset hearings and under the looming threat of extreme legislation that could be passed in a matter of days, should opponents of the reforms refuse to compromise. (Prime Minister Benjamin Netanyahu has refused to intercede personally in the crisis, possibly due to a warning issued by the attorney general about his potential conflict of interests, given his criminal trial and the potential effect the reforms may have on his trial.)
Some prominent voices in Israel have made counterproposals to those advanced by Levin and Rothman; others have proposed compromise formulations, trying to bridge the gap between the proposals, and counterproposals by offering a diluted version of the legal reforms planned by Levin and Rothman.
One proposal put forward by a group of economists, business lawyers, and high tech entrepreneurs contains 10 points, which represent a counterproposal to the Levin and Rothman plans. These 10 points include the following: (a) enactment of Israel’s Declaration of Independence in a basic law; (b) completion of the Israeli bill of rights; (c) establishing a majority of 80 out of 120 members of the Knesset for passing or amending basic laws; (d) requiring a supermajority of two-thirds of judges on the Supreme Court (and a quorum of at least 11 justices out of the 15 serving on the Court) for striking down Knesset legislation as unconstitutional; (e) establishing a court for civil and criminal appeals as another instance of appeal above the district courts (which in Israel are courts of second instance in some cases and courts of first instance in other cases); (f) whereas the composition of the judicial selection committee may change, any new composition should reflect the principle that appointments to lower courts should be made by a professional majority on the committee and to the Supreme Court through agreement between representatives from the different branches of government; (g) the status of the attorney general and his or her powers should be set forth in legislation; (h) some easement of the terms for removing legal advisers from government offices; (i) application of all changes from the next Knesset onward; and (j) adding more judges to the judicial system so as to shorten litigation backlogs. These suggestions are quite similar to suggestions put forward subsequently by the Israel Democracy Institute (where the authors serve as senior fellows).
As for compromise solutions, Raz Nizri, a former deputy attorney general who has been known for his relatively conservative views, proposed the introduction of an override clause to allow the reintroduction of legislation struck down by the Supreme Court if 65 out of 120 members of the Knesset support the override. He has also proposed the limitation, but not cancellation, of reasonableness review by the Court. Nizri has also been open to a change in the composition of the Judicial Selection Committee in a manner that would remove the Supreme Court’s power of veto over Supreme Court appointments, while ensuring that the coalition is not in a position to pass judicial appointments on its own votes only. Nizri’s proposals may be acceptable to a few members of the opposition as part of a negotiated settlement of the matter.
At the same time, Moshe Koppel, the chairman of Kohelet, an influential conservative think tank involved in preparing some of the proposals for reform used by Levin and Rothman, suggested that government ministers be able to hire and fire legal advisers instead of allowing government ministers to just ignore their legal positions, as the current proposals suggest. He also suggested a number of other measures: (a) allowing reasonableness review only to decisions of unelected officials; (b) a change in the composition of the Judicial Selection Committee so as to exclude from it judges and strengthen the representation of the opposition therein; (c) preventing the Supreme Court from reviewing basic laws while creating procedural barriers against passing or amending basic laws too easily; and (d) opting for a supermajority in the Court for striking down legislation while doing away with the override clause. Given the strong ties between Kohelet and Levin and Rothman, there is some likelihood that Kohelet’s ideas will be acceptable to them as part of a final settlement.
The most prominent of the compromise proposals to date was presented on Feb. 12 by President Herzog. His plan consists of five points. The first is enacting a Basic Law: Legislation, in which conditions for passing new basic laws—including the determination of a supermajority—will be articulated. The Supreme Court would not be able to review the constitutionality of basic laws that passed under the new procedure. The second would be to increase the number of judges across the judicial system in order to deal with the litigation backlog. Third, he proposes that the minister of justice and the president of the Supreme Court prepare a joint plan to further decrease judicial backlogs and increase trust in the judicial system. Fourth, he proposes the creation of a new Judicial Selection Committee that will include three members from each branch of government (including one opposition member among the Knesset representatives) and public representatives jointly selected by the minister of justice and the president of the Supreme Court. Under such a system, no group would have a built-in majority. Finally, his plan calls for the redefinition of the patent unreasonable administrative law doctrine in a more limited manner, with a view to distinguish between decisions adopted by elected and unelected officials.
While there is merit in some of the president’s ideas, there are also some shortcomings, which has led some critics to maintain that they are tilted in favor of the Levin and Rothman proposals. For one, the president’s proposed compromise relating to the composition of the Judicial Selection Committee will strengthen the hand of the coalition over judicial appointments and, as a result, limit the independence of the appointment process. According to his plan, there will be five members of the coalition (three ministers and two out of the three members of the Knesset) in a committee of 11 members, whereas currently the coalition controls three seats out of nine. It might be enough for one of the public representatives chosen jointly by the minister of justice and the president of the Supreme Court to side with the coalition to give the coalition effective control over most judicial appointments (at present, they need two members to switch to their side, and have little to no involvement in the selection of the other six members of the committee). Furthermore, the president’s proposals do not insist on a supermajority for override legislation—despite its broad potential to harm basic human rights and democratic safeguards (and the opposition’s insistence on override by supermajority or no override at all). Finally, his proposals distinguish between reasonableness review as applied to elected and unelected officials, despite the fact that the minister could simply readopt all important decisions, which will then become immune to reasonableness review.
At this point, it is unclear whether a real process of negotiations will take place between the coalition and the opposition and whether there will be meaningful consultations between the three branches of government. The president’s call not to proceed to a vote in first reading on the draft bills that have already emerged from the Constitution, Law and Justice Committee has been rejected out of hand by the minister of justice and the committee chair, and two bills passed a first reading (out of a total of the three readings required for passage) in the Knesset plenary on Feb. 20. While it has been suggested by some government ministers that after the first reading there would be a willingness to reconsider the reform package, this may be a smoke screen designed to placate public opinion, which is increasingly hostile to the reform, and an attempt to stabilize financial markets that are reacting negatively to the political crisis in Israel. It is also not clear whether the opposition will be willing to negotiate when the threat of quick adoption of the legislation in second and third readings is looming over its head. This is especially so given the uncertainty over the way in which the Supreme Court will react to the reform package.
It should also be borne in mind, in this context, that while the opposition has been relatively united in its stance against the judicial reform plan, this might change quickly once negotiations for compromise commence, since the politically diverse opposition will find it very difficult to unite around any proposal that would be acceptable for the coalition. Moreover, entering negotiations could also lead to dissipation of the public protests, and it will be very difficult, if not impossible, to reignite them.
The Next Battle
The majority coalition passed on the Feb. 20 first reading two components of the legal reform package (namely, two draft amendments to Basic Law: The Judiciary and the Courts Law) that would change the composition of the Judicial Selection Committee and explicitly prohibit the Supreme Court from reviewing the validity of basic laws. Why these components were chosen to be advanced first are obvious: The changes in the composition of the Judicial Selection Committee are time sensitive, because the committee has to be established according to the Knesset within four months of the date of swearing in of the new Knesset (the current date for the swearing-in is March 15, though the coalition may try to extend this timeline). Moreover, the question of judicial review of basic laws is critical for the whole reform package, since most of it is planned to be enacted through amendments to existing basic laws that might be struck down by the Court. The proposed basic law amendment seeks to explicitly strip away this power from the Supreme Court.
The big legal question is what the Supreme Court will do when confronted with these two new laws. In our best estimate, on the basis of positions expressed in past cases by most of the justices on the Court in obiter dicta on the Court’s authority to strike down amendments to basic laws that run contrary to core features of the identity of the state of Israel as a Jewish and Democratic state, there is a good likelihood that the Court would strike down the two proposed amendments. (See here for more on the unconstitutional constitutional amendment doctrine.) This is because these two amendments make up key elements in the legal reform plan that the president of the Court has already characterized in a public speech as a fatal blow to judicial independence and Israeli democracy. If the Court will indeed strike down the new basic law amendments, the spotlight will turn to the executive, specifically to the reaction of the minister of justice, who has long claimed that the Court has no authority to review the legality of basic laws. If the minister goes forward and convenes the Judicial Selection Committee according to the new amendments to the basic law, after the Court annuls them, Israel may find itself in a Poland-like situation in which the very identity of the judges of the highest court in the land is in doubt (producing “real judges” and “fake judges”).
This might not be, however, the end of the story, since other amendments to basic laws related and unrelated to the proposed legal reforms are in the pipeline, as is a petition relating to the legal incapacitation of Prime Minister Netanyahu for allegedly violating the terms of the 2020 judgment that allowed him to serve under a criminal indictment provided he follow specific conflict-of-interest guidelines. Any decision by the Court on these sensitive matters against the collation might result in challenges to its legitimacy to issue such decisions by the government (Minister of Justice Levin already stated that the Court’s willingness to even discuss the incapacitation of Netanyahu resembles a coup d’état), and state officials might find themselves torn between conflicting orders from the Court and the government—a disastrous recipe for anarchy and breakdown of law and order in Israel.
Conclusions
While the proposals for legal reforms are making their way through the legislative process, the controversy surrounding them substantively and procedurally continues to grow. Such a controversy is already resulting in a deep rupture in Israeli society (including a possible realignment of the political map therein) and an unprecedented constitutional crisis, which could result in a breakdown of law and order in Israel and lead to legal anarchy.
At this point, there is no clear way out of the crisis. The new government, having generated the crisis through “shock and awe” techniques like pushing for the rapid approval of an extreme and sweeping legal reform, appears intent on advancing the reforms at all costs. This can be explained, in part, by a perception of the unique political opportunity created after the last Israeli elections for politicians like Levin and Rothman to implement their long-held ambition of radically cutting down the powers of the judicial system. Their ambition also coincides with the desperate situation of Prime Minister Netanyahu, who is standing trial for corruption and who seems intent on bringing down the entire legal system with him should he fall. At the same time, the opposition, emboldened by the massive protests against the government, has no clear incentive to compromise and agree to a plan that the government can present as a political victory.
As the crisis deepens, Israeli democracy finds itself on the brink. Its long-standing system of checks and balances and judicial independence are under an all-out attack, and the country’s “social contract” appears to be unraveling. While the crisis—which is no doubt a “constitutional moment”—could result in new agreements over constitutional norms and arrangements, the speed and scale of the progression of the crisis, the deep chasm it is creating in Israeli society, and the chaotic dynamics inside the Knesset do not bode well for such an agreement to emerge. Instead of getting closer to a shared understanding of the basic rules of the “democratic game,” the country appears to be headed towards a nondemocratic, or at least a significantly less democratic, future. This weakening of democracy and the rule of law in Israel may lead to domestic and regional instability in an already-tense security situation and reverberate beyond Israel’s borders.
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