Is Netanyahu’s Supreme Court Proposal Reform or Regime Change?

By Magdalena Offenbeck, Managing Editor

Only weeks after its inauguration, Israel’s rightwing government under returning Prime Minister ers took to the streets of Tel Aviv to demonstrate against what many consider a step to dismantle Israeli democracy. However, the controversy reflects a tale as old as democracy than the number required to form a coalition government. After that four-year period, any newly elected coalition could re-legislate the statute, making it immune to further judicial

Benjamin Netanyahu has set out to severely curtail the powers of the Israeli Supreme Court. The current legislative proposal by Justice Minister Yariv Lavin will revoke the influential Israeli Supreme Court’s veto rights on government legislation and regulation, and place the judicial appointment panel under government control. This has sent shockwaves through Israeli society which, as the countless failed coalitions in the last years have shown, is already deeply divided. On Jan. 14, 80,000 protest- itself: the intrinsic tension between the counter-majoritarian mechanism of judicial review and the will of popularly elected representatives.

Under the reform proposal, government bills could be struck down by the Supreme Court with only a majority of 80 percent of judges in a panel of 15. Even if the Court reaches this supermajority, the Knesset could re-legislate the bill for a period of four years with a simple majority of just 61 Knesset members — a figure lower review. Additionally, the government could appoint seven of the 11 members to the judicial appointment panel. This would de facto end any possibility of independent judicial review.

Israel’s Supreme Court is known for its wide powers and active role in reviewing government legislation. It has historically taken a liberal stance on controversial issues such as Israeli citizenship and settlements in the West Bank and offered an effective counter mechanism to the ongoing shift to right- wing party dominance in the country. However, its mandate and legitimacy are far from unequivocal. Israel’s 1948 Declaration of Independence mandated the drafting of a national constitution; but this was never fulfilled. Instead, the Basic Law, 14 laws adopted since 1958, has served as a growing body of constitutionalism in Israel. Judicial review was only progressively constitutionalized. In 1995, famous ex-Chief Justice Aharon Barak fundamentally altered the balance of power by asserting in the landmark case “United Mizrahi Bank v. Migdal” that the lack of a constitution did not prevent constitutional supremacy. Instead, laws considered fundamental Basic Law enjoy the status of legal supremacy, and the Israeli Supreme Court has the power to adjudicate on the conformity of legislation within this hierarchy of norms. The Court has since used this power to apply controversial principles such as “reasonableness,” whereby it can invalidate government legislation if it finds it unreasonable.

Barak has called the proposal “the beginning of the end of the modern state of Israel,” outlining that it would leave citizens defenseless against the abuse of their rights. In a lengthy televised interview shortly after the proposal’s announcement, Barak warned of a possible tyranny of the majority and emphasized the importance of a thick conception of democratic principles, including minority rights protection. His comments were met with severe criticism by Justice Minister Lavin, who, like Netanyahu himself, portrays the measure as essential to restore democracy. The coalition government has continuously portrayed the Supreme Court as an instrument of the left and illegitimate due to its power to trump the will of democratically elected lawmakers. In a Jan. 16 Tweet, Netanyahu stressed that his government will not be “deterred by the attacks of the left and the media.” In recent years, the rise of left-wing governments has seemed like a sheer impossibility and cleavages between the left and the right have deepened on all social issues. This is accompanied by an increasing personalization of political power whereby anti- and pro-Netanyahu have become synonyms for left and right-wing political orientations. To the current government coalition, the Supreme Court is a tool the left uses to exert the influence it has lost in democratic elections.

The politicization of the Court by the Israeli right is reflected in the stark divide in public opinion. In a recent survey by The Israel Democracy Institute, 54% of participants “agreed that the Supreme Court should have the power to strike down laws passed in the Knesset which conflict with the Basic Laws of the State of Israel.”

This view was held by 76% of secular Israelis, while only 15% of Haredi Israelis agreed with the statement. Party alignment shows similar divides. Among the most prominent left-wing parties, 85% of survey participants expressed their support for the Court. Netanyahu’s more religious political base opposed the Court’s prerogative by no less than 95%.

At the core of the issue lies a question of demo- cratic legitimacy that has preoccupied constitutionalists since the idea of judicial review was first conceived. Proponents of the Supreme Court, such as Aharon Barak, highlight the essentiality of Constitutional Courts in providing a counter-majoritarian mechanism in societies, especially those as deeply divided as Israel’s. The country’s multiparty system of proportional representation with low thresholds to enter the Knesset has always allowed for diverse representation. Nevertheless, it has also made it possible for right-wing coalitions to overpower minorities in the government. It has been the role of the Supreme Court to assess the conformity of these coalitions’ actions with basic rights and freedoms.

Yet, the proposal is hailed by many as a return to true democracy. Reform proponents believe the Court has an overly powerful role in politics as it inherently lacks democratic legitimacy, allowing judges to tablishing principles such as “reasonableness” that can be subject to broad application and interpretation. An opinion column by David M. Weinberg, vice president of the Jerusalem Institute for Strategy and Security, reflects these beliefs. He sarcastically outlines that “‘Reasonableness’ is authoritarian jargon that allows High Court justices to elastically apply their own sensibilities to socially re-engineer Israeli society in their enlightened image.” These contradictory perspectives leave little room for compromise and conciliation. push an agenda that is not necessarily representative of the right-wing political majority in the country. Those considering democracy as the mere fulfillment of the will of the voting majority have long seen the Court’s powers as undemocratic by nature. Due to its lack of clearly enumerated constitutional powers, the judiciary has been able to take on an increasingly active and powerful role, es-

The dismantling of the Supreme Court is by far not the only issue in Israeli politics that has seen extreme division and polarization, but to many, it is the most fundamental one yet. Should Netanyahu’s coalition succeed and pass the bill by March as announced, the political power balance is set to change drastically. Many fear that the Supreme Court’s dismantling will unravel the already limited liberal influence in Israeli politics and install a tyranny of the majority. To others, it is the return of true democracy. Whatever perspective one takes, Israel is a special case. Few democracies are forced to accommodate social diversity to this degree. Should the Knesset move forward with its proposal, it remains to be seen how the state’s diverse actors will reconcile their differences within a system that uniquely caters to a political majority that does not mirror the heterogeneity of Israeli society.