The Current State of Play in Israel’s Constitutional Showdown

Since Jan. 11, 2023 the Knesset Constitution, Law, and Justice Committee has held, almost on a daily basis, hearings dedicated to the judicial reform package under the provocative heading, “Zion shall be redeemed by justice: restoring justice to the legal system.” (ציון במשפט תפדה - מחזירים את הצדק למערכת המשפט) These reforms, as we have discussed over this series of articles, seek to rebalance the allocation of power across the different branches of government by severely limiting the power of the Supreme Court to review Knesset legislation and administrative decisions, providing the ruling coalition with a decisive say on judicial appointments, disempowering the Attorney General and other governmental legal advisors, and removing the Supreme Court’s ability to conduct a reasonableness review of executive branch decisions. 

Despite strong opposition inside the Knesset, outside—on the streets—and a blizzard of critical statements by experts and policy makers 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 will be 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% 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 advisors 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 advisor 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 advisors 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 advisors 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  a system of 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 “rule of the game” and thus, according to tradition, should only apply to the government established in the next Knesset. Rothman refused to follow this latter advice and accused the Committee’s legal advisor, Gur Bligh, as 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 advisors that are supposed to support its work.           

Compromise Proposals

Up until now, Levin and Rothman have rejected all requests—including from the 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 their views and 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 counter-proposals to those advanced by Levin and Rothman; others have made proposed compromise formulations, trying to bridge the gap between the proposals and counter-proposals 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 hi-tech entrepreneurs contains 10 points, which represents a counter-proposal to the Levin and Rothman plans. These 10 points include:  1) enactment of Israel’s Declaration of Independence in a basic law; 2) completion of the Israeli bill of rights; 3) establishing a majority of 80 out of 120 members of Knesset for passing or amending basic laws; 4) requiring a super-majority 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); 5) 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); 6) 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; 7) the status of the Attorney General and his/her powers should be set forth in legislation; 8) some easement of the terms for removing legal advisors from government offices; 9) application of all changes from the next Knesset onwards; 10) 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 both 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 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 parts 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 advisors instead of allowing government ministers to just ignore their legal positions, as the current proposals suggest. He also suggested a number of other measures: 1) allowing reasonableness review only to decisions of unelected officials; 2) 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; 3) preventing the Supreme Court from reviewing basic laws while creating procedural barriers against passing or amending basic laws too easily; and 4) opting for super-majority 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.

It should also be borne in mind, in this context, that while the opposition has thereto 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 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, 2023, 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 comprise 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, and 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 reform are in the pipeline, as well as 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 undertakes to follow specific conflict of interests 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.

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