Israel's Judicial Reforms, What to Know!

Israel’s Judicial Reforms: What to Know
By Steven A. Cook, CFR Expert

The Israeli parliament’s new legislation limiting Supreme Court oversight of government policies has raised alarm over deepening societal divisions and potential democratic backsliding.

Israel’s parliament, the Knesset, has passed the first part in the planned overhaul of the country’s judiciary system. What does this new legislation do, and why is it so controversial?
The Knesset passed legislation that abolishes the “reasonableness doctrine,” which the Supreme Court of Israel has employed to evaluate government policies. It is a practice used by high courts in Australia, Canada, and the United Kingdom, among other countries. The doctrine operates exactly as it sounds: the court determines whether a given government policy is sensible and sound. For example, when Prime Minister Benjamin Netanyahu appointed Shas party leader Aryeh Deri as minister of finance, the Supreme Court determined—based on the reasonableness doctrine—that he was not eligible to serve in the position due to previous convictions of bribery, fraud, breach of trust, money laundering, and various tax offenses. Now that the Knesset has made this type of judicial oversight impossible, it is conceivable that Deri could become a minister. It is also possible that the annexation of parts of the West Bank will proceed given that by dint of the legislation, the Supreme Court is limited in its ability to be a check on the government’s power.

What could the broader judicial reform package mean for democracy in Israel?

Critics of the package fear that it will weaken the judicial system in favor of the government and the Knesset. Because Israel has a parliamentary system, proposed reforms such as undermining judicial oversight and changing the way judges are appointed will undermine the balance of power between Israel’s branches of government. As a result, opponents argue, the changes underway will destabilize Israeli democracy. Proponents of the reforms argue the opposite, making the case that the judiciary has become an unaccountable branch of government that has usurped the power of the Knesset and the government in setting policy.

The divisiveness of the debate over judicial reforms reflects the fact that Israelis have moved beyond debating the relative merits of technical changes to the judiciary and are now arguing over a range of difficult issues, including the role of religion in Israeli society, national identity, and the defining qualities of Israel’s polity. All of these are intertwined with debates about Israel’s Jewish and democratic character. In this way, the judicial reform package has spurred a high-stakes national conversation about what it means to be Israeli. The resulting divisions have raised concerns about Israeli security as military reservists have vowed not to show up for duty as a result of the changes, how the current instability will affect the Israeli economy, and the possibility of violence among Israelis.

Who is behind the plans to reform the judiciary, and what do they aim to achieve?

In addition to Prime Minister Netanyahu, the Israeli officials most closely associated with the judicial reform project are Minister of Justice Yariv Levin, who is a member of the Likud Party, and Simcha Rotman, who is a member of the Religious Zionist Party and chair of the Knesset’s Constitution, Law, and Justice Committee. Levin and Rotman are just the most high-profile of a group of right-wing and right-of-center politicians who have sought to overhaul the judiciary. They have been aided in this effort by an organization called the Kohelet Policy Forum, which is backed financially by American and Israeli citizens and states that it aims to “secure Israel’s future as the nation-state of the Jewish people, to strengthen representative democracy, and to broaden individual liberty and free-market principles in Israel.”

Are any challenges to the new law likely to succeed?
Given that Netanyahu and his coalition government hold a 64-seat majority in the 120-seat Knesset, it is unlikely that opposition parties can do anything within the legislature to stop judicial reform. The abolition of the reasonableness doctrine prevailed in a 64-0 vote because the legislation’s opponents staged a walkout. This type of action is important symbolically, but meaningless at a practical level. The composition of the Knesset and the incentives for parties in Netanyahu’s coalition to remain in the government mean that the challenges to the judicial reform have moved to the streets. The images of hundreds of thousands of Israelis protesting over many months have been arresting, but despite this pressure, popular demonstrations have done nothing to prevent judicial reform from proceeding.

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