ISREALI’S JUDICIAL OVERHAUL By: Olivia Ugboaja
BACKGROUND
In January 2023 Benjamin Netanyahu's returned to office of Prime Minster after being outed for 18 months.[1]This administration has been noted to be the most right-wing and religious government, and one of the most conservative since the country's founding.[2] Citizens expected this administration to implement policies that could bring significant changes to the nation.[3] One of which was the 2023 Israeli Judicial Overhaul Plan. The Judicial Overhaul is a package of bills that each need three votes in the Knesset before it can successfully pass into law.[4] The bill was proposed less than a week after the Prime Minister took office, and it seeks to achieve four changes to the judicial system.[5] Fighter pilots and members of the intelligence, cyber, and special operations units in the IDF, stated that they will not report to work if the first bill of the judicial overhaul is passed in Knesset.[6]
ISREALI JUDICIAL OVERHAUL PLAN
The bill proposes measures that would weaken Israel's Supreme Court, alter the system for appointing judges, and give politicians greater influence over the appointment process. It also includes legal changes that would allow ministers to appoint political allies as legal advisers in their ministries, along with other practices that are currently unprecedented in the country.[7] These proposed changes have led to outcry amongst the Israeli people with them calling for the scrapping of the bill and resignation of the Prime Minister.[8] Opponents of this bill are concerned that the bill will pave the way to bringing the country into authoritarian rule by severely undermining the country’s democratic system, which is the tool that checks government use of power.[9] Amongst these concerned citizens include some of the Prime Minister’s “political rivals, as well as former top officials in Israel's military, intelligence and security services, former chief justices, and prominent legal figures and business leaders amongst others.”[10]
Following the state of the nation, in 2023, Israel's President Isaac Herzog urged Prime Minister Netanyahu and his supporters to avoid destroying the country in their power struggle over the judiciary, and instead to embrace the moment as an opportunity for a “formative constitutional moment.”[11] He even proposed a framework which he claimed would “protect[] Israel as a Jewish and democratic state.”[12] The prime Minister rejected this.
THE BILL IN KNESSET
Isreal does not have a written Constitution, instead it is governed by a quasi-set of basic laws, which the Supreme Court has used for many years to maintain order in the state.[13] Amendments to the Basic Laws require only 61 votes in the Knesset to pass, this is easily achievable as The Prime Minister has since successfully passed the first of the new laws in July 2024, despite six months of protests and the pressure from the U.S. against doing so.[14] The bill prevailed in a 64-0 vote in Knesset because opponents of the bill staged a walkout.[15] This legislation, known as the "Reasonableness bill,” removes the Supreme Court's authority to rule that government decisions are unreasonable.[16]
A looming question in the nation is whether the Prime Minister’s legal issues are a reason for the push for judicial reform.[17] The Prime Minister has been fighting criminal charges in court.[18] These charges include receiving gifts in return for political favors, exchanging regulatory favors for positive media coverage, fraud, breach of trust, corruption, and other abuse of power claims. [19] However, the prime minister and his supporters have claimed the reasoning behind this bill is that the people’s elected representatives ought to govern without shackles from the courts.[20] The proponents of the bill argue that the judiciary has gathered excess power and, in some ways, overshadows the powers of other government branches.[21]
With Prime Minister Netanyahu and his coalition government holding a 64-seat majority in the 120-seat Knesset, opposition parties have little ability to block the judicial reform within the legislature.[22] What then are the realities of the proposed bill becoming law? According to the opposition leader Yair Lapid, passing of this bill threatens the democratic state of Isreal.[23] He argues that the proposed reforms will lead to swift and far-reaching changes that could undermine principles established in the Declaration of Independence and potentially isolate Israel from the community of liberal democracies.[24] Isreal does not have a written Constitution, instead it is governed by a quasi-set of basic laws, which the Supreme Court has used for many years to maintain order in the state.[25] The Supreme Court serves as the only check on the power of the government and the Knesset.[26] Implementing this law will allow these governmental bodies to take actions and and to judge the legality of their action, creating a self- regulating government.[27]
UPDATE SINCE THE PASSING OF THE BILL
In January 2024, the Supreme Court of Isreal struck back in its longest decision ever, striking down the controversial Reasonableness bill.[28] Twelve of the fifteen judges held that a provision in a basic law conflicts with the fundamental principles of Israel's identity as a Jewish and democratic state, the High Court of Justice (HCJ) has the authority to overturn it.[29] However there remains speculation that the incumbent government and the right-wing coalition in the Knesset, which make up the majority, will not respect this decision.[30] Bar-Ilan University Professor Ori Aronson comments on the connection between this case and the October 7, 2023 deadly Hamas attack on Isreal.[31] He noted that the Supreme Court’s decision brings the reasonableness test back on the table for discussion, but the government has been silent since the decision despite there being petitions filed concerns certain appointment; for example the appointment of Itmar Ben-Gvir, Israeli Minister of National Security who was appointed despite his recent criminal convictions.[32]
[1] Barak Ravid, Israel Swears in Most Right-Wing Government in Its History, AXIOS (Dec. 29, 2022), https://www.axios.com/2022/12/29/israel-netanyahu-far-right-government-ben-gvir-smotrich.
[2] Id.
[3] Id.
[4] Chaim Lax, How a Knesset Bill Becomes Israeli Law, HONEST REPORTING (Jan. 2, 2023), https://honestreporting.com/how-a-knesset-bill-becomes-israeli-law/.
[5] Barak Ravid, What To Know About Israel’s Contentious Judicial Overhaul Plan, AXIOS (July 24, 2023), https://www.axios.com/2023/07/24/israel-judicial-overhaul-reform-explained; Israel's Proposed Judicial Reforms and the Israeli Public's Response (Winter-Spring 2023), JEWISH NEW HAVEN, https://www.jewishnewhaven.org/israeli-judicial-reforms (last visited Feb.1, 2025.
[6] Barak Ravid, What To Know About Israel’s Contentious Judicial Overhaul Plan, AXIOS (July 24, 2023), https://www.axios.com/2023/07/24/israel-judicial-overhaul-reform-explained.
[7] The Judicial Overhaul, THE Israel DEMOCRACY INST., https://en.idi.org.il/tags-en/47383 (last visited Jan. 3, 2025).
[8] Raffi Berg, Israel Judicial Reform Explained: What Is The Crisis About?, BBC (Sept. 11, 2023), https://www.bbc.com/news/world-middle-east-65086871.
[9] Julia Frankel, Israel’s Contentious Legal Overhaul Comes to A Head as Judges Hear Cases on Their Own Fate, ASSOCIATED PRESS (Sept. 12, 2023, 3:02 AM), https://apnews.com/article/israel-judicial-overhaul-netanyahu-d4ebdff08f42b225f7a2a933f7d793f5.
[10] Berg, supra note 7.
[11] Toi Staff, Warning Of Civil War, Herzog Unveils Framework For Judicial Reform; PM Rejects It, THE TIME OF ISREAL (Mar. 15, 2023, 10:41 PM), https://www.timesofisrael.com/a-golden-path-after-weeks-long-effort-president-debuts-overhaul-compromise-offer/.
[12] Id.
[13] Steven A. Cook, Israel’s Judicial Reforms: What to Know, COUNCIL ON FOREIGN RELS. (July 26, 2023, 10:57AM), https://www.cfr.org/in-brief/israels-judicial-reforms-what-know.
[14] Hadas Gold, Richard Allen Greene and Amir Tal, Israel Passed a Bill To Limit The Supreme Court’s Power. Here’s What Comes Next, CNN(July 24, 2023, 10:15PM), https://www.cnn.com/2023/07/24/middleeast/israel-judicial-reforms-vote-explained-mime-intl/index.html.
[15] Cook, supra note 13.
[16] Cook, supra note 13.
[17] Are Netanyahu’s Legal Troubles Behind Push for Judicial Change? ALJAZEERA (July 24, 2023), https://www.aljazeera.com/news/2023/7/24/are-netanyahus-legal-troubles-behind-push-for-judicial-change.
[18] Id.
[19] Id.
[20] Frankel, supra note 9.
[21] Alok Kumar Gupta and Honey Raj, Imperatives of Judicial Reforms in Israel: An Analytical Perspective, J. CONTEMP. POL., 2023, 7, 8.
[22] Cook, supra note 13.
[23] What to Know About Israel’s Judicial Reforms, AJC (June 13,2023), https://www.ajc.org/news/what-to-know-about-israels-judicial-reforms.
[24] Gupta and Raj, supra note 21 at 6.
[25] Cook, supra note 13.
[26] Gold, Greene and Tal, supra note 14.
[27] What Do Netanyahu’s Judicial Reforms Mean for The Future of Israel? THE WEEK (July 25, 2023), https://theweek.com/news/law/961769/what-does-netanyahus-judicial-reforms-mean-for-the-future-of-israel.
[28] Amichai Cohen, and Yuval Shany, The HCJ Strikes Back: Israel’s Supreme Court Pulls the Plug on “Judicial Reform”, LAWFARE (Jan. 11, 2024, 9:54 AM), https://www.lawfaremedia.org/article/the-hcj-strikes-back-israel-s-supreme-court-pulls-the-plug-on-judicial-reform.
[29] Id.
[30] Why Did the Israeli Supreme Court Strike Down Judicial Reform? Commentary by Ori Aronson, BYU L. (Jan. 23, 2024), https://talkabout.iclrs.org/2024/01/23/why-did-the-israeli-supreme-court-strike-down-judicial-reform-commentary-by-ori-aronson/.
[31] Id.
[32] Id.