Explained: Netanyahu Government’s Plan to Weaken the Justice System

New Justice Minister Yariv Levin wants to give the legislative branch of government unprecedented powers at the expense of the Supreme Court and legal advisers. Here are the answers to Haaretz readers' questions about what this all means

Amir Tibon
Amir Tibon
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Justice Minister Yariv Levin speaking in the Knesset on Wednesday, where he outlined his radical plans to weaken the role of the Supreme Court.Credit: Emil Salman
Amir Tibon
Amir Tibon

Justice Minister Yariv Levin announced a series of dramatic changes to Israel’s legal system on Wednesday that, if implemented by the new Benjamin Netanyahu-led coalition, would dramatically weaken Israel’s top court and give unlimited powers to the government.

Israel’s previous justice minister, Gideon Sa’ar, called the plan “regime change” and warned that it would lead to an unprecedented constitutional crisis.

Here are some key questions readers have asked regarding this earthquake in Israeli politics, and our best efforts to answer them...

What’s so dramatic about this plan?

Of all the different components, the most important is Likud lawmaker Levin’s plan to pass an “override clause” that would allow the smallest possible majority in the Knesset to overrule decisions by the Supreme Court (which also sits as the High Court of Justice to hear petitions).

Israel does not have a constitution, and the separation between the legislative and executive branches is very weak as the government almost always holds a majority in the Knesset. This makes the Supreme Court the only institution with the power to limit government actions and legislation passed by a parliamentary majority. Now Levin wants to take that power away.

Prime Minister Benjamin Netanyahu in the Knesset last month.Credit: Ohad Zwigenberg

In the current balance of power, the Supreme Court can’t just arbitrarily discard government decisions or legislation. It must rule that the action being canceled contradicts one of Israel’s Basic Laws. These are the 12 laws that are supposed to be a foundation for a future Israeli constitution. So, for example, if the government were to pass a law that damages the rights of Israeli women, the Supreme Court could strike it down because that discrimination contradicts Israel’s Basic Law on Human Dignity and Liberty.

What Levin’s plan would do is give the smallest possible majority in the Knesset – 61 lawmakers out of 120 – the power to then override the Supreme Court and reinstate the annulled legislation. For instance, if the government passed a law that clearly favored ultra-Orthodox citizens and hurt the rights of secular Israelis, and the Supreme Court then struck it down, all it would take to reinstate the discriminatory law is 61 votes in the Knesset.

Legal experts have warned that this could open the door to previously unimaginable possibilities in Israel’s democratic order. Theoretically, the government could shut down Haaretz newspaper, outlaw opposition parties or change the election rules in a way that would clearly benefit the ruling coalition and hurt the fairness of the next election – and as long as 61 lawmakers are committed to those moves, there would be no way of challenging them.

Some opponents of Levin’s plan, including his predecessor Sa’ar, have stated that they would be willing to support a more restrained override clause – one that would require a larger Knesset majority in order to overrule Supreme Court decisions.

Sa’ar has said that in his view, it should be required that at least one opposition lawmaker has to side with the coalition in order to successfully reverse the court’s decision. Levin, however, has rejected the compromise and insists on his more extreme version.

Former Justice Minister Gideon Sa'ar in the Knesset last month.Credit: Ohad Zwigenberg

What else does this plan include?

Levin also wants to change the composition of the committee that selects Israel’s judges. Today, the Judicial Appointments Committee includes politicians from both the government and the opposition, judges and representatives of the Israel Bar Association.

Levin wants to increase the power of the politicians and decrease that of judges and lawyers, effectively giving the government the power to appoint judges and, critically, Supreme Court justices.

Another change he wants to promote is to make it more difficult for the Supreme Court to annul legislation by requiring a larger majority of justices, and not just a regular majority, for any such decision to take effect.

When this idea is combined with increasing the government’s control over judicial appointments and the override clause, it becomes clear that Levin, in essence, wants the Supreme Court’s ability to conduct judicial reviews to become a dead letter.

Sara Netanyahu, top, applauding as Esther Hayut, president of the Supreme Court, and Lihi Lapid attend the swearing-in of the new government last month.Credit: AMIR COHEN - AFP

Levin also wants to turn the legal advisers who serve Israel’s government ministries from professional appointees who report to the attorney general into political appointments totally controlled by ministers.

This matters because if a minister wants to take illegal action today, the legal adviser’s role is to warn them that they are planning an illegal move, and to raise the matter with the attorney general. Under Levin’s proposed arrangement, the legal advisers chosen by the ministers will lack the independence to challenge the politicians.

Last but not least, Levin wants to cancel the “reasonableness” standard that has been used by the court over the years to reverse government decisions that justices deemed beyond reason. Most famously, in 1993, the Supreme Court forced then-Prime Minister Yitzhak Rabin to fire Arye Dery from his position as interior minister after the leader of the ultra-Orthodox Shas party was indicted for bribery.

Shas leader Arye Dery.Credit: Marc Israel Sellem

Why is Levin presenting these changes now?

The timing is important, and not coincidental. It has a lot to do with Dery – the abovementioned party leader who, 30 years after his indictment, is still in politics but early last year was found guilty of tax evasion in a plea bargain with then-Attorney General Avichai Mendelblit. Dery resigned from the previous Knesset as part of that deal but later ran in the November election, where his Shas party won 11 seats. He has since been named as both interior and health minister in the new government.

On Thursday, the Supreme Court (sitting as the High Court) heard arguments in three petitions asking it to reject Dery’s appointment, with the “reasonableness” standard playing an important role in proceedings. Attorney General Gali Baharav-Miara told the court she could not defend Dery’s appointment, since it was “extremely unreasonable” to appoint someone recently found guilty of tax evasion to a senior government position.

Levin’s press conference on Wednesday night, in other words, came just 12 hours before the Supreme Court convened to discuss a case that could have major implications for the stability of Netanyahu’s new government. One top legal analyst on Israeli television called Levin’s announcement a “Mafia-style threat” and compared it to putting a loaded gun in front of the justices – a metaphor also echoed by former Prime Minister Yair Lapid.

Israeli Attorney General Gali Baharav-Miara.Credit: Moti Milrod

What have been the reactions to the announcement?

Netanyahu has not spoken in public since Levin presented his plan. However, hours before Levin’s press conference, the prime minister said his government will work to “ensure the right balance” between the branches of government in Israel.

Netanyahu’s ultra-Orthodox and far-right coalition partners welcomed the Levin plan, which most of them have been supporting for years. The religious parties view the Supreme Court as a liberalizing force in Israeli society, arguing that most of the progress that has happened in Israel in recent decades – regarding LGBTQ rights, for instance – came through court decisions and not legislation.

The responses were harsh among opposition parties. Opposition leader and former Prime Minister Yair Lapid called the new government “a gang of criminals” intent on destroying the legal system, and promised to cancel Levin’s changes if he returns to power.

Former Defense Minister Benny Gantz advised Netanyahu to respond to Levin’s plan with a more moderate effort, in consultation with the opposition and the judiciary, in order to reach a “balanced” reform of the legal system. “I call on Netanyahu to choose dialogue, not confrontation,” Gantz tweeted, adding that his National Unity Party will consider supporting an override clause – but only if it includes a larger majority than the currently suggested 61.

Former Justice Minister Sa’ar blasted Levin’s plan, calling it a death sentence for Menachem Begin’s political philosophy.

“During his speech, Minister Levin mentioned Menachem Begin – the legendary first leader of the Likud party. But his words were no less than an execution of Begin’s democratic and governmental doctrine,” Sa’ar said.

“There’s no doubt that Begin would have rejected each one of the steps in the plan for regime change in Israel. The real students [of Begin] must fight this. And that’s what I will do.”

Israel Bar Association head Avi Himi warned that “the new government wants power without limits, without oversight and without restraints, and to turn the State of Israel from a Jewish, democratic and liberal country into a benighted one.”

What happens next?

Levin will turn the different elements of his “reform” into legislation, which is expected to come up for a preliminary vote in the Knesset before the end of the month. It remains to be seen if Netanyahu will give a green light to all of it, or if he will try to soften some elements following the internal and international criticism over the fate of Israeli democracy.

Former Justice Minister Tzipi Livni.Credit: Screenshot

Meanwhile, a demonstration against Levin’s plan is set to take place in Tel Aviv on Saturday evening. Former justice and foreign minister Tzipi Livni has called on the public to attend.

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