Image credit: People hold a banner during a protest against Israel's Prime Minister Benjamin Netanyahu's new right-wing coalition and its proposed judicial reforms to reduce powers of the Supreme Court in Tel Aviv, Israel February 11, 2023. REUTERS/Amir Cohen

A highly controversial bill in Israel aims to alter the country’s legal system to give the executive branch more power at the expense of the Supreme Court. It’s expected to have repercussions well beyond the court system. Experts suggest it could deter talent and investment and is likely to erode the country’s democracy.

The government of Israeli Prime Minister Benjamin Netanyahu, sworn into office at the end of December 2022, barreled ahead with a highly contentious plan that appeared to target the Supreme Court. The country’s de facto constitutional court has, for most of Israel’s 74-year existence, acted as a guarantor for judicial review and protections of civil liberties. Specifically, the plan aims to alter both the authority and the make-up of the court.

In February, the bill passed the initial vote, one of three required readings in the country’s legislative body, the Knesset. The move prompted rare mass rallies – with as many as 500,000 estimated to have taken part – and faced strong opposition from top business leaders, some security officials and law experts. But, perhaps more ominously, the proposal has brought to the fore divisions and distrust among the Israeli population, who now question the future character of their democracy.

Supreme Court as ‘an enemy’

Proponents say the plan, contrary to public fears, will fix a broken system that has for too long given the Supreme Court near unchecked powers. They also complain that, unlike other democracies, the Knesset has no power to impeach justices; the Supreme Court self-selects and self-ousts justices and has controlling vote and veto on a nine-person ‘judicial selection committee’ for new judges. The committee is made up of four legislators and members of the government along with three Supreme Court judges and two lawyers from the bar association.

Moreover, justices can nullify decisions by Israel’s elected legislature and government. By proposing the overhaul, the government argues that it is placing limits on such court authority and ais in fact creating a more effective democracy that represents the views of voters rather than unaccountable independent justices with liberal orientation.

In February, an op-ed in the Jerusalem Post explained why the bill will pass. The authors, Morton A Klein and Elizabeth Berney, blamed a group of ‘George Soros-funded anti-Israel [non-governmental organisations]’ that brought a flood of ‘lawfare’ cases before a sympathetic Supreme Court to harass the Israeli government and the military, particularly when it came to dealing with the Palestinians.

‘The Court blocked the [Israel Defense Forces] from razing buildings used by terrorists to attack Israelis passing on the nearby road, even though the army planned to pay compensation to the absentee building owners’, says Klein, who heads the Zionist Organization of America.

Illustrating how deeply angered by the Court nationalist groups have become, Israeli Haartez journalist Amir Tibon says they view the Supreme Court literally as ‘an enemy’.

Harming judicial independence

But equally fervent on the other side of the divide are Israelis who fear unprecedented dire consequences for the country’s legal system, civil rights, democracy and even economy.

In January, hundreds of Israeli economists warned in a letter that the judicial reforms will end in economic disaster for the country as they will undermine the independence of the judiciary and the reliability of the rule of law, both factors that are pivotal for successful investment and business.

‘Legislating these changes is expected to make Israel less attractive to investors, as it is less committed to democratic principles’, Barak Medina, Professor of Law and Rector of the Hebrew University of Jerusalem, tells Global Insight.

At the end of February, the Wall Street Journal reported that some tech companies have started shipping money overseas and counted at least nine of Israel's tech companies that were already moving cash holdings outside the country. The US, Israel’s strongest international ally, warned a reordered legal system would hurt Israel’s image and Tom Nides, US Ambassador to Israel, likened the plan to setting one's own backyard on fire.

Medina, however, suggests the discussion is rather theoretical since the Supreme Court will override the bill but explained that the legislation, if enacted, would indeed shift power to the executive branch and result in appointing justices on a political basis, counter to the current tradition. ‘The change in the law regarding judicial appointments would definitely harm judicial independence. The open question is what policies the government would pursue if it were free of constitutional limitations’, says Medina.

While it’s not clear the direction legislators will ultimately take, especially in the face of rising protests, both sides are entrenching arguments along the divide prompting Israel’s figurehead president, Isaac Herzog, to appeal for a compromise. Herzog suggested that the country needed some legal reforms but not in the controversial form that has been proposed. Instead, he called for a freeze on the legislation and invited both the government and opposition to produce a joint text. One of the suggestions is that there will be a requirement for a special majority to override court rulings. Both the government and the opposition may be forced to agree on a less harmful bill.

Emad Mekay is a freelance journalist and can be contacted at emad.mekay@int-bar.org