Understanding Israel’s Constitutional Nightmare

A Summary of How the National Crisis Began
Israelis protesting with flags in front of Supreme Court

Friedrich Naumann Foundation

Netanyahu’s Stumble

To fully grasp the current situation, it is necessary to also understand the woes of one single man. Indeed, Israel's Prime Minister, Benjamin Netanyahu, faces serious legal trouble. Indicted on several charges of bribery, fraud and breach of trust, the country’s number one citizen denies the allegations, citing a “witch hunt” plotted by his opponents in politics, the media, and the courts.

“Bibi” - as most Israelis know him - is embroiled in three ongoing trials. He was prosecuted in 2019 for granting regulatory concessions in exchange for favourable coverage in a news media outlet (known as Case 4000), receiving over $100k in gifts from a billionaire and a Hollywood producer (known as Case 1000), and allegedly promising legal advantages to a newspaper for positive reporting (known as Case 2000).

While Netanyahu’s trials have begun, they have slowed to a crawl. Yet, if found guilty, he could spend years in jail, which leads many analysts and citizens to believe that the current legal reform is aimed at shielding the Prime Minister from prosecution.

Summary Since Last Election

So, how did Bibi regain power while being entangled in multiple corruption cases?

Over the last few years, Israeli politics have undergone a deep polarization. Parties and voters have been cornered into two opposing blocks, with support for Netanyahu’s persona as the fault line. His detractors see him as a corrupt leader who seeks to cling onto power, even if it means undermining liberal democracy in Israel. His supporters accuse the opposition of pushing extremists to the forefront of the political landscape by refusing to enter into a coalition with his party, the Likud.

The campaign running up to the elections in November 2022 exacerbated this divide. While the pro-Bibi block consolidated around religious and ultra-nationalist political parties, the anti-Netanyahu block failed to organize the survival of their smaller parties, which are instrumental in forming durable majorities. Because the voter turnout was much higher than in previous elections, some formations like the dovish left-wing Meretz and the Arab Balad party received too few ballots to enter the Knesset. As a result, the anti-Netanyahu block emerged severely weakened.

For lack of willing moderate partners from the opposing side, Netanyahu courted the far end of the political spectrum, with much success. As a result, Netanyahu VI comprises strengthened ultra-orthodox and ultra-nationalist parties. Faction leaders from the far-right formations, such as Otzma Yehudit’s hawkish Itamar Ben-Gvir were handed important portfolios, like the National Security Ministry.

The Judicial Overhaul

Shortly after the elections, the newly formed government introduced a legislative package on the Knesset floor aimed at overhauling Israel’s judicial system. The goal of the legislation is no secret: to restrict the judicial branch’s balancing power. For years, ultra-orthodox parties and settlers in the West Bank have been pushing to muzzle the top court, which they see as obstructing their own interests. While radical judicial reform is not a core Likud political slogan, Netanyahu has a great interest in supporting his coalition partner’s priorities if he wants to remain in power.

 Because Israel lacks a formal Constitution and that it has a unicameral legislative system, the Supreme Court often acts as the sole counterpower to the legislative and executive branches. Its role in examining the conformity of all new legislation to the existing quasi-constitutional “Basic Laws” makes it an important political battleground. Populist right-wing parties routinely accuse it of being an elitist, unelected body that promotes political values estranged from the “true will of the People''.

 The proposed legislation can be summarized in five main points. The first revision is the so-called ‘override clause’. The change allows the Knesset to re-enact a law previously struck down by the Supreme Court for being “anti-constitutional”. However, beyond introducing the legal principle, no consensus exists on how this would work practically. Indeed, the most extreme proponents advocate for a simple majority in the Knesset to overturn the Court’s decision. Others argue that an absolute majority should be enough. Opponents believe that much higher voting quotas should be necessary to override such judicial decisions.

 The second provision – and perhaps the most contested - concerns the judges who sit on the Supreme Court. The Judicial Selection Committee, the organ responsible for nominating and removing supreme justices, is supposed to represent the interests of broad segments of Israel’s population. It is currently composed of two Ministers, two MKs, three Supreme Court judges and two members of the Israeli Bar Association, who bring field expertise. Seven out of nine members must vote in favour of decisions to pass. The mix is supposed to keep the judiciary independent and in touch with Israeli society. But coalition parties argue that its composition is too institutional and politically left-leaning. In an attempt to remove the lawyers’ automatic majority, they propose to reduce their presence and thus free up more space for elected representatives.

 The third point is turning the legal advisors within Ministries, who ensure that the executive branches follow the law when implementing policies, into political appointees. Ministers often clash with the legal advisors because they are loyal to the Attorney General, and not chosen by the Ministries. However, such changes would diminish oversight of the legality of the government’s actions.

 The fourth proposed change is to dilute the importance of the so-called “test of unreasonableness”. The legal principle allows citizens and organizations to challenge arbitrary and disproportionate governmental action or legislation. The “reasonable” test has recently resurfaced when the Supreme Court barred Netanyahu from appointing Shas Chairman Arye Deri, a recidivist white-collar criminal, as a Minister. Coalition partners argue that the Court overstepped its prerogatives by undermining a democratically elected government.

The fifth proposal concerns the immutable character of the quasi-constitutional Basic Laws. The coalition, but also other opposition parties, want to prevent the Supreme Court from revising Basic Laws, which are passed by the Knesset. However, new rail guards could be implemented to fill the lack of judicial oversight, such as voting quorums and popular approval through new legislative elections.

Growing Protest

 The judicial overhaul has torn Israeli society apart like never before. Massive protests have shaken the country since Justice Minister Levin tabled the proposal thirteen weeks ago. Demonstrators, crippling transportation throughout the country, routinely block main roads and highways. The Ben-Gurion airport was besieged every time the Prime Minister went on foreign visits. Workers' unions have coordinated strikes. At their peak, the manifestations gathered three-quarters of a million people throughout the country in a single day. In relatively rare cases, the protests have led to skirmishes with the police while far-right troublemakers have begun showing up, resulting in increasingly violent confrontations.

 The loudest protest movement comes from the secular Israeli population. However, other voices have raised their objections. The military, for instance, has been an unlikely – yet crucial - actor in the protests. Reservists, fighter pilots and soldiers in the Israeli Defense Force have declared they will stop showing up to duty if the reform passes to mark their discontent with the government. Amid a recent resurgence of deadly violence in the West Bank, and in anticipation of the holy month of Ramadan, when tensions with Palestinians usually peak, this poses significant security issues for the country. Some soldiers also fear that the reform could expose them to international prosecution regarding war crimes, as Israel’s judicial system might become too weak to go after perpetrators.

 Another unprecedented development is the tech business sector’s direct involvement in the country’s politics. Traditionally insulated from Israel’s national and regional political instability, its high-paid employees and executives have “awoken” to their political weight as a driving force behind Israel’s economy. Thousands of tech workers have poured onto the streets of Tel Aviv, demonstrating against reforms that could have cataclysmic consequences for their industries. Legal and political uncertainties have already forced foreign investors to divest money or announce relocation to the US.

 The protests have also highlighted the schism between the so-called “first Israel”, the wealthy, Ashkenazi, and often liberal segment of Israel’s population, and the “second Israel”, composed of Mizrahi Jews, who have always felt discriminated against. In addition, many Arab Israelis feel detached from the protests, seeing the issue as a dispute between Jews. As a result, they have largely been absent from the demonstrations, even if minorities would likely suffer most from an unchecked religious and nationalist government.

A Constitutional Compromise?

Few solutions have been proposed to exit the current constitutional crisis. President Herzog has unofficially assumed the position of mediator between the coalition and the opposition because of the neutrality attached to his position. In early March, after weeks of behind-the-scenes negotiations, Mr. Herzog claimed that he was able to find agreement on “most points”. The proposal he laid forward included a more political Supreme Court Justices selection committee, the establishment of a “Charter of Basic Rights” to protect individual freedoms and limiting the Court’s reviewing powers based on the “unreasonable” test. The opposition parties welcomed an imperfect proposal as a basis for further negotiations. The coalition partners, however, immediately rejected Herzog’s initiative, calling it biased.

Mr. Netanyahu, who cannot legally interfere in matters related to the judiciary due to a conflict of interest (yet has done so), is in an incongruent position. Although he might support the bill’s end goal of limiting the Supreme Court’s powers, pressure was immense on him to suspend the bill until a consensus with the opposition parties is found. On the one hand, he must try to satisfy his coalition partner’s ambition for clipping the Supreme Court’s wings, at the risk of his government collapsing if he does not deliver.

On the other hand, he must reassure large parts of Israeli society that he will defend a pluralistic and liberal democratic state. Limiting the political damage from this crisis would have required him to build a consensus around a moderate reform of the judicial system. That is not the route Netanyahu chose.

Until After the Holidays

On the evening of March 25th, while the Prime Minister was on an official visit in London, Defense Minister Yaov Gallant (Likud) went on air to address the nation. In his speech, he called for the halting of his government’s judicial overhaul plans until after Pesach, the traditional Jewish Holiday in April.

In response to his Minister’s defiance, Netanyahu fired him the next day. The decision sparked the biggest day of protest in the country’s history. Media channels reported more than eight hundred thousand protestors nationwide. For the first time, even right-wing and Likud voters joined the protests, seeing Gallant’s criticism as legitimate. The move yet again drew the ire of Israel’s international partners.

With the country on the brink of civil war, the Prime Minister was forced to put the brakes on his judicial overhaul until after Pesach, despite some coalition partners threatening to collapse the government. However, he vowed to his allies and detractors that the reform would eventually pass, one way or another. He would give the negotiations a chance, but if no compromise is to be found during the month-long Knesset recess in early April, it will be passed during the parliamentary session that follows.

In the end, Bibi was able to pull yet another political miracle: convince his coalition partners to stay. The price he paid for his partner’s loyalty was giving the green light to one of Ben-Gvir’s most eccentric desires: the creation of a “National Guard Force”, over which he supposedly would have full control. Its purpose would be to tackle organized crime in various forms, with a special emphasis on the Arab Israeli communities. But many expect him to want to use it against anti-reform demonstrators, whom he has called “terrorists” in the past. Palestinians also warn against using this police force in the West Bank, as it would encourage settler violence and undermine any de-escalation efforts.

The Ministerial Cabinet has already agreed to a whopping 1,5% overall budget cut to fund Ben-Gvir’s National Guard. Senior members of Israel’s police force have expressed strong opposition to the proposal, as it risks creating a split in Israel’s internal security apparatus, where responsibilities are not clear.

What Can We Expect?

Consensus-building negotiations were launched the day after Netanyahu declared the postponement of the crucial vote. It was the first time that delegations from the government and opposition met since the judicial overhaul was proposed in January. Justice Minister Yariv Levin and Knesset Constitution Committee Chairman Simcha Rothman, both architects of the bill, are absent from the discussions.

Only the framework for further talks was discussed, not delving into details yet. President Herzog, who is leading the negotiations, has agreed to put his proposal aside, leaving room for all parties to bring up their own initiatives.Talks are held, but already “dead in the water” according to senior officials, as both sides hold great mistrust of each other.

It is unclear how this political gridlock will be resolved - and if it can be at all, as both sides see it as a fight for their values and democracy. What is certain is that the country is more polarized than it has ever been. The political parties have a month to find a compromise. If they fail to do so, the government will continue to push through the legislation, deepening the fracture among Israelis and threatening the country’s security and prosperity.