The fight over Israel’s democratic institutions – what’s actually at stake?

The radical legal reforms introduced by Israel’s new government in January, a few days after taking office, and the accompanying legislative blitz the ruling coalition initiated shortly thereafter in the Knesset, has thrown the country and its political system into a state of turmoil.

The planned package of reforms include four main components: strictly limiting the power of the Supreme Court to review the constitutionality of legislation; limiting its power to review executive acts; politicising the process for appointing judges; and weakening the powers of government legal advisors.

Each of these measures is bound to empower the governing coalition significantly. Their combined effect is expected to dismantle Israel’s current system of checks and balances; undermine the rule of law and judicial independence; and effectively transform Israel from a (flawed) liberal democracy to one only in name.

To understand the serious implications of the reforms, one has to consider the anomalous and weak nature of Israel’s constitutional system.

Israel has no comprehensive Constitution. Rather, its constitutional order is built around 13 basic laws passed by the Knesset over the years, which protect some human rights and delineate the power of state institutions.

The basic laws are passed, however, using the same process in which ordinary legislation is passed.

Since Israel is a parliamentary democracy in which the majority in the Knesset forms the government of the day, the parties that have even the slightest majority in the Knesset control both the legislative and executive branch. Furthermore, they also control the process of passing new basic laws and can thereby change the constitutional “rules of the game”.

In the absence of institutional checks and balances such as those found in most other democracies (for instance, two houses of parliament, presidential veto, federalism, membership of regional blocs, and human rights mechanisms), the one meaningful check on the power of the ruling coalition is the Supreme Court.

The latter has construed the basic laws over the years (admittedly, not without controversy) as granting it the power to review the compatibility of ordinary legislation with basic laws. It has developed administrative-law tools designed to limit the abuse of government power, including assessing whether government measures are patently unreasonable.

Some court justices have also observed that even basic laws that violate the country’s core democratic features are reviewable.

Relying on these powers, the court struck down over the years 22 laws, including laws that exempt ultra-Orthodox men from military service; facilitate the prolonged detention of asylum seekers; and confiscate private Palestinian land in the West Bank. It also nullified “patently unreasonable” government decisions, such as appointing for certain ministerial positions politicians standing trial for corruption or those convicted of tax fraud.

Though the actual number of laws and measures invalidated by the court is relatively low when compared to courts in other countries, the impact of these judicial decisions has been amplified by government lawyers who instructed government ministries to refrain from proposing legislation or taking executive action which is likely to be struck down by the court.

The planned reforms seek to dismantle all of these checks and balances that have been developed over the years, one by one.

The court would be explicitly forbidden from reviewing the basic laws itself. Its decisions to strike down legislation would require a super-majority on the court – 12 out of 15 serving justices – and the Knesset could reintroduce any law that was struck down by a simple majority – 61 out of 120 serving members of the Knesset.

Effectively, this would empower the ruling coalition to enact legislation harming human rights and minority rights, as well as to change the democratic rules of the game in its favour.

Furthermore, the system of judicial appointments will be dramatically changed from a selection process, which since 1953 has been dominated by professionals (five out of the nine members of the judicial selection committee are lawyers or judges), to one dominated by politicians (five out of the nine members would be politicians from the ruling coalition).

This would be a significant blow to judicial independence in Israel, and would effectively give the ruling coalition power of control over all three branches of government.

The reforms also seek to remove or severely limit the power of the court to review the reasonableness of government measures, opening the door for corrupt decisions and administrative acts that violate human rights. This would also release government officials from a duty to follow legal instructions issued by government lawyers, allowing them instead to adopt their own (potentially tendentious) interpretations of what the law is.

Israeli democracy is already institutionally weak and hardly liberal in its overall orientation, given that it tolerates many chronic violations of human rights, especially in the field of state and religion and the minority rights of Arab Palestinians, and has afforded very limited protections to Palestinians living under Israeli military rule. The upshot of these initiatives, if accepted, is that Israel would become a hollow democracy. It would become a liberal democracy in name only.

It’s not surprising that hundreds of thousands of Israelis have taken to the streets in recent weeks to stop what they call the “legal revolution” or “legal coup d’état” that would fundamentally change the nature of the country. Rightfully, they regard the coming weeks – during which the reform will either pass or be stopped – as Israeli democracy’s moment of truth.

• Yuval Shany is deputy president of the Israel Democracy Institute.
• He will take part in a live debate held by the South African Zionist Federation on the implications of judicial reform on 9 March at 19:00 on Zoom. See www.sazf.org for more details.