Netanyahu's Coup for Dummies: Israel's Constitutional Crisis, Explained

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Netanyahu's Coup for Dummies: Israel's Constitutional Crisis, Explained
Netanyahu's government is promoting bills that will significantly weaken Israel's judicial system. What does he want? Who is protesting? What is at stake? Here is Haaretz's guide for the perplexed
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Israel is in the midst of a huge political crisis. Prime Minister Benjamin Netanyahu's far-right government is promoting legislation that would significantly weaken the country's judicial system and give almost unlimited power to the ruling coalition.

- The stand-off between protesters and Netanyahu is escalating. Neither side will back down
- UN human rights chief calls on Israeli gov't to halt judicial overhaul
- Israelis must prepare for a long, painful battle against Netanyahu's judicial coup
- Netanyahu's dogmatic right-hand man has already blocked off his escape route

What is this legislation, how will it change the balance of power between the different branches of government in Israel, and what, if anything, can stop it? Here is everything you need to know as the battle for the fate of the country's democracy intensifies...

Override clause
The government's proposed legislation includes an "override clause" that would allow the smallest possible majority – 61 out of 120 lawmakers in the Knesset, Israel's parliament – to overturn rulings by the Supreme Court. Israel does not have a constitution, and the separation between the legislative and executive branches is very weak, since the government almost always holds a majority in the Knesset.

This makes the Supreme Court the only institution with any power to review government actions and legislation passed by a parliamentary majority. Netanyahu's government wants to strip the court of that power.

In the current balance of power, the Supreme Court can strike down legislation if it contradicts one of Israel's Basic Laws. So, for example, if the government were to pass a law that hurts the rights of Israeli women, the court could strike it down because that contradicts Israel's Basic Law on Human Dignity and Liberty. However, the proposed override clause would allow the government to reinstate the discriminatory law if 61 lawmakers backed it in a Knesset vote.

Legal experts have warned that this could open the door to hitherto 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.

Some opponents of the government's plan 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. The Netanyahu government, however, is insisting on the most extreme version possible.

Basic Laws
Israel's Basic Laws are a "working draft" for a future constitution, if Israel ever gets around to writing one. One current problem is that Israel doesn't clearly define what makes a law a "basic" one, and doesn't clearly differentiate the process of legislating Basic Laws from regular laws.

This is crucial, because the Netanyahu government wants to completely forbid the top court from striking down Basic Laws. A bill doing just that passed a preliminary Knesset vote on Monday.

The problem here is that while the government wants to bar the court from striking down Basic Laws, it refuses to address the question of how those Basic Laws are legislated and what differentiates them from regular laws – which, according to the government's plan, the court could still strike down, albeit with the possibility of an override in the Knesset.

What this means is that under the government's proposed legislation, any law that a simple majority of lawmakers chooses to define as 'basic" would automatically become immune to judicial review. In other words, if the government passed a law discriminating against minorities in Israel and labeled it a Basic Law, there would be no need to use the override clause as the court would have no power to intervene in the first place.

This is another example of the government adopting an extreme position and rejecting more moderate ideas for judicial reform.

Some opponents of the government's plan have expressed support for the principle that the court should not be able to strike down Basic Laws, but said the Knesset must first adopt a clear definition of what makes a law "basic" and separates it from ordinary legislation. So far, the Netanyahu government has shown no interest in doing so.

Judicial appointments
As if the abovementioned changes didn't give the government enough power, the overhaul would also fundamentally change the process of judicial appointments. This would severely diminish the judicial system's independence from political pressures.

In Israel today, judges are appointed by a committee that includes equal representation for politicians, sitting judges and lawyers. This committee has faced public scrutiny in recent years over alleged corrupt dealmaking between the different representatives. There is widespread support for reforming the committee. Again, though, the big question is how to do that.

The government's proposal would change the balance of power on the committee so that, in essence, the government would have an automatic majority and enjoy complete control over all judicial appointments.

There are several democracies, including the United States, where politicians are involved in appointing judges. But in the U.S., for example, judges have to be confirmed by the Senate – which is often held by a different party from the one controlling the White House, and where senators are elected on a regional basis. This means they have a certain commitment to their home state and not just to their party.

In Israel, the system is very different. Governments often use a mechanism called "coalition discipline," which forces members of the ruling coalition to vote strictly according to party line. Lawmakers, including those who represent the government on the Judicial Appointments Committee, are not elected directly by the public and owe their presence in the legislature to the party they belong to. As a result, if the government's suggested change is adopted, its majority on the committee could never be challenged.

The Netanyahu trial
One issue looms over the entire crisis: Netanyahu's corruption trial. The prime minister is facing charges of bribery, fraud and breach of trust in Jerusalem District Court. His trial has been ongoing since May 2020 and dozens of testimonies have already been heard in the courtroom.

In the years before he became a criminal defendant, Netanyahu was one of the strongest advocates for an independent judicial system. The archives are full of interviews and statements from the prime minister in which he praised the Supreme Court and took pride in blocking legislation from right-wing allies that was meant to hurt the legal system.

His commitment to weakening the very same institutions he once praised is new, and it is hard to avoid seeing it as somehow being connected to his own legal predicament.

The judicial overhaul plan could assist Netanyahu in several ways. First, his government would essentially control any promotions for the three judges currently presiding over his case. In addition, the new system for judicial appointments would give the government the power to appoint Israel's next Supreme Court justices. No matter what happens in the Netanyahu trial, it is highly likely that an appeal will eventually reach the Supreme Court. Under the new rules, Netanyahu's political allies would get to choose the justices who will, in effect, decide his fate.

Netanyahu could also use the very threat of judicial overhaul to try to force the legal system into negotiating a comfortable plea deal and close the cases against him.

Israel's religious parties
Netanyahu's government is based on the support of several religious parties, who together make up half of his coalition. These parties are the strongest supporters of the changes to the judicial system, for several important reasons.

First, there is the case of Shas – the ultra-Orthodox (or Haredi) party led by veteran politician Arye Dery. Last month, the Supreme Court ruled in a dramatic decision that he should not serve as a minister in the government due to his past convictions and recent tax evasion scandal (for which he struck a plea deal and left the last Knesset session). If the judicial overhaul plan passes in its current form, the government would have the power to reinstate him as a minister despite the court's decision. In fact, it is already promoting legislation that would forbid the court from intervening in ministerial appointments.

The other ultra-Orthodox party, United Torah Judaism, needs the judicial overhaul in order to settle one of the longest and fiercest disputes in Israeli politics: the question of Haredi enlistment in the military. Despite the outdated myth of Israel having compulsory military conscription and the army serving as a societal melting pot, in reality huge segments of Israeli society no longer serve in the military – including the ever-growing ultra-Orthodox community.

Its political leaders fear the Supreme Court would strike down legislation meant to officially exempt Haredim from the military due to the clear discrimination this represents against all those Israelis who must enlist at age 18. The judicial overhaul would strip the court of the power to intervene, and thus allow the ultra-Orthodox parties to pursue their goal.

In the future, these parties could also pass legislation that hurts other civil rights of non-Haredi Israelis and impose religious laws on the country, knowing that the court would not be able to block such legislation.

Last but not least, the judicial overhaul is strongly supported by the far-right Religious Zionism party, which is committed to expanding Israeli settlements in the occupied territories and opposes any form of compromise with the Palestinians.

Ron Ben-Yishai, one of Israel's most prominent military analysts – and a decorated hero from Israel's 1973 Yom Kippur War – wrote on the popular Ynet website that the party wants the judicial overhaul to pass in order to turn Israel into an apartheid state. Ben-Yishai explained that Religious Zionism leader Bezalel Smotrich is determined to achieve this goal and wants to the Supreme Court sidelined.

The Israeli economy
The government's plans have led to a chorus of warnings from leading economic experts in Israel and abroad. They believe the proposed judicial overhaul will create major risks for the stability and success of the Israeli economy. These warnings have been issued by the current governor of the Bank of Israel and several of his predecessors, and also by hundreds of economists. Leading international banks like JPMorgan and HSBC have also weighed in on the matter.

This threat has led the top executives in Israel's banks to offer stark warnings in private conversations with Netanyahu and Smotrich (who is also Israel's finance minister). The executives said they are seeing a clear trend of companies and private customers withdrawing funds from the country, amid growing fears that the Israeli shekel will significantly weaken and lose its value.

These fears have been reinforced by the prominent and rare involvement of Israel's successful high-tech sector in the widespread protests against the government's plans.

International legal implications
Another concern has been raised by Israel's top experts on international law. They believe that weakening the Supreme Court, and the judicial system more broadly, would harm Israel's efforts to protect itself from international legal procedures.

Former Attorney General Avichai Mendelblit, who was also the military advocate general in the Israel Defense Forces, told Haaretz that a key condition for the current support of Western countries is the existence of an independent judicial system. The moment the justice system isn't perceived as that, Israel would lose international legitimacy for its military operations and would no longer be shielded from accusations of war crimes.

He also warned that the resulting void would be filled by the International Court of Justice in The Hague and overseas prosecutors. As an example, Mendelblit pointed out that foreign citizens are killed in every military operation Israel undertakes.  Today, he said, complaints submitted overseas in connection with those deaths are turned down, "because the attorneys general in those countries believe we have an independent system that investigates and acts in good faith." But "now they would be admitted, because all the government's proposals are aimed at neutering the judicial system."

The protest movement
Hundreds of thousands of Israelis have taken to the streets since the start of the year to demonstrate against the judicial overhaul, in what has become one of the largest protest movements in Israeli history. There have been massive rallies in front of the Knesset, and the demonstrations have spread from Tel Aviv and Jerusalem to all corners of the country.

There isn't one organization or group behind these protests, but rather, a wide and often informal coalition that is united around strong opposition to the government's efforts. It includes retired military generals and spymasters, as well as veterans from Israel's wars, alongside young high-tech workers representing the 'start-up nation.' Demonstrations have taken place in religious communities and even some right-wing strongholds.

President Herzog's initiative
Earlier this month, Israeli President Isaac Herzog offered a framework for compromise between the coalition and opposition parties. He adopted the basic elements of the government's judicial overhaul, but moderated them in several ways so that the government would not have absolute power.

He invited both sides to enter negotiations based on his plan, but the government rejected his one and only request: that in order to facilitate dialogue, the legislative process in the Knesset be halted. Just a week after he presented his initiative, two laws that are part of the judicial overhaul passed their first votes in the Knesset.

The will of the people
Supporters of the judicial overhaul argue that since Israel had in election in November 2022, and the religious, right-wing bloc of parties won a majority of Knesset seats, the changes in the judicial system reflect what a majority of Israelis voted for and should be respected.

However, during the election, Netanyahu's Likud party promised that any changes to the judicial system will be done "responsibly and with wide public support." The specific details of the plan were not presented by Likud before Election Day. Public opinion polls currently show that a majority of Israelis, including a significant amount of Likud voters, want the government to pause the legislative process and open dialogue with the opposition.