Will the head-on clash be prevented? A change in Israel's legal system - opinion

Whether Netanyahu will intervene in order to try to prevent a head-on clash is, at this point, a total mystery.

 MK SIMCHA ROTHMAN, chairman of the Knesset Constitution, Law and Justice Committee (left), and Justice Minister Yariv Levin shake hands at a committee meeting last week (photo credit: YONATAN SINDEL/FLASH90)
MK SIMCHA ROTHMAN, chairman of the Knesset Constitution, Law and Justice Committee (left), and Justice Minister Yariv Levin shake hands at a committee meeting last week
(photo credit: YONATAN SINDEL/FLASH90)

The crisis concerning the future of the legal system erupted soon after the formation of the government, when Justice Minister Yariv Levin introduced a whole set of legal reforms, which, if implemented in full, without any modifications or checks and balances, will lead, or is liable to lead – according to the opposition – to the destruction of Israel’s liberal democracy.

At the time of writing, the crisis seems to be escalating at great speed, without any brakes or barriers, toward a head-on clash.

The official position of the government is that the reforms, which Levin seeks to pass in the form of laws (including a Basic Law: Legislation) and amendments, are all designed to deal with the problem of governability, which all the recent Likud-led governments have faced. At least in the case of Levin himself and Simcha Rothman, the chairman of the Knesset Constitution, Law and Justice Committee, this rationale also has deep conservative ideological roots.

According to the government, the existing legal system is responsible for the problem of governability primarily because the legal advisers in the ministries – who are currently subservient to the attorney-general and not to the ministers who head the ministries in which they serve – are inclined to place legal spokes in the wheels of the ministers’ policy plans, rather than help them get their plans through; and because the courts are not wary of declaring laws, or articles in laws passed by the Knesset, as being unconstitutional, even though Israel does not have a formal constitution. At the moment the government and the Knesset have no effective way to counteract the courts’ decisions.

What is the reason?

 MK Simcha Rotman, Head of the Constitution Committee leads a committee meeting at the Knesset, the Israeli Parliament in Jerusalem, on January 10, 2023.  (credit: YONATAN SINDEL/FLASH90) MK Simcha Rotman, Head of the Constitution Committee leads a committee meeting at the Knesset, the Israeli Parliament in Jerusalem, on January 10, 2023. (credit: YONATAN SINDEL/FLASH90)

The reasons for these two phenomena, says the government, have to do with the makeup of the courts and the identity of the legal advisers, resulting from the fact that even though the Center/Left has lost its political predominance in the country, it still maintains its predominance in the universities, Israel’s cultural institutions and its legal system.

In order to redress the situation in the legal system, the government seeks to bring about a change in the makeup of the courts by introducing major changes in how judges are selected and how legal advisers are appointed, by giving the politicians in the executive branch a predominant role in the two processes.

The opposition rejects the new proposals lock, stock and barrel, claiming that they are designed to destroy Israel’s liberal democracy and that everything should be done to prevent their being adopted.

Since the government has a solid majority in the Knesset, there is no likelihood that the opposition will manage to defeat the government’s bills or introduce any major amendments in them, though it can certainly use obstruction and delay tactics in the course of the process.

As a result, the opposition has chosen to go out to the streets and support statements by leaders of the legal system and powerful groups in the population (such as retired army generals) concerning the dangers inherent in the proposed changes.

The risk involved in this activity is that since the public seems pretty set in its support for, or opposition to, the proposed changes, all this activity might backfire.

Though I agree with almost everything that former Supreme Court president Aharon Barak – the “father” of Supreme Court activism that, to a large extent, created the situation that the government is trying to “reverse” – said in his three self-initiated interviews on TV Channels 11, 12 and 13, and with the speech given by current Supreme Court President Esther Hayut at the University of Haifa last Thursday, I am not sure that they didn’t do more harm than good in their appearances. I do not believe they convinced anyone to change his or her position, and both have been belittled and even mocked by the government and its supporters.

I am also not at all sure whether massive demonstrations in Tel Aviv and other cities will have any positive effect on the government, whether or not order will be kept in them, and whether or not the police will use excessive force to disperse them if order will not be kept.

I do not exclude a situation in which nothing the opposition will do will in any way convince Levin to make any major changes in his bills, since, as already mentioned above, his motivation is not only practical but also ideological.

Whether Prime Minister Benjamin Netanyahu will intervene in order to try to prevent a head-on clash is, at this point, a total mystery.

Most members of the opposition believe that Netanyahu supports Levin’s policy because of considerations having to do with his trial. Others choose to delude themselves that Netanyahu’s past support for keeping the Supreme Court and the whole legal system strong (and he made many statements to this effect in the past) is still what he believes in deep down in his heart.

THERE ARE those who believe (or hope) that the current buildup could end up in talks and compromise, which would enable the adoption of much more moderate reforms in the system, which both sides would be able to live with, and which would ward off the most extreme dangers to the liberal democratic system.

They base their optimism on the fact that most members of the opposition admit that there are certain faults in the legal system and believe that if the two sides will sit down together in good faith, a compromise can be reached on most issues.

For example, though there are strong objections in the opposition to an override clause, which is included in the reforms, and would enable the Knesset to override a decision by the High Court of Justice to reject a law, or certain articles in a law, on grounds of unconstitutionality, by simply re-legislating the said laws or articles with an absolute majority, there are many who would be willing to accept such a clause if it would involve a special majority (say 65 or 70 MKs) for re-legislation that would also include members of the opposition.

The problem is that it is not clear whether the government is willing to consider more than just cosmetic changes in its proposals. Both Levin and Rothman refuse to hold any sort of negotiations outside the Knesset committee, though they promise to let everyone – including Hayut, if she so desires – express their opinions in the committee. However, they do not promise to pay heed to any of these opinions.

When, almost two weeks ago, National Union Party leader Benny Gantz offered to Netanyahu to hold talks on the issue, he received the same answer that Levin and Rothman keep giving – open deliberations in the Constitution, Law and Justice Committee.

It has been reported that the President Isaac Herzog is holding secret talks with all the relevant factors in the government, urging them to open serious negotiations with the opposition about a possible compromise. However, for the time being, we have no information on whether his efforts are bearing fruit, and whether the head-on clash will be prevented.

The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge.