Like Great Britain, Israel has a parliamentary system of government. There are 120 members in its parliament, the Knesset. Therefore, to form a government, the leader of the largest party following an election must form a coalition with other parties so that, together, they control at least 61 Knesset seats. Benjamin Netanyahu, whose Likud Party gained the largest number of Knesset seats in last November’s election, forged a coalition with two ultra-Orthodox parties and two far-right parties led by Itamar Ben-Gvir and Bezalel Smotrich. This coalition government controls a total of 64 Knesset seats.
Netanyahu and the members of his coalition are united in the belief that Israel’s Supreme Court is too activist and needs to be restrained. Israel has no written constitution. Instead, the Knesset has enacted a series of Basic Laws, including one such law in 1992 that is the equivalent of our Bill of Rights. Since then, the Supreme Court, exercising the power of judicial review, has invalidated 22 regular laws as contradicting a Basic Law.
The coalition government’s Justice Minister, Aryeh Levin, presented a legislative package geared toward weakening the independence of the Supreme Court. Today, justices are selected by a nine-member committee consisting of members of the government, the opposition, Israel’s Bar Association and Supreme Court. They must work together to find consensus on judicial candidates. Levin’s plan instead would give the government full control over selection of the justices. His plan also provides for an “override clause,” meaning that with a simple majority of 61 in the Knesset, the government could reverse any Supreme Court decision.
The political opposition led by Yair Lapid and Benny Gantz responded that even if some reforms are needed, the government’s draconian plan was nothing but a power grab. By eradicating judicial independence, it would convert Israel into a majoritarian democracy with no mechanism for the protection of minority groups and individual rights, the latter being a prerequisite of liberal democracy. Since the government controls the Knesset, the opposition argued, power in Israel essentially would be concentrated in the hands of one individual, Prime Minister Netanyahu.
Wide segments of Israeli society shared the opposition’s concerns, and mass protests have taken place the last several months in cities across the country bringing literally hundreds of thousands into the streets. Dire warnings came from Israeli and American business leaders that this unrest could seriously damage Israel’s successful economy that primarily has been built on high-tech and foreign investment. Even more ominously, Israel’s military leaders expressed concern that the country’s security could be at risk.
Israeli President Isaac Herzog, observing that the nation was approaching the “abyss” and that civil war was not an impossibility, offered a plan of his own as the basis for a negotiated compromise. The opposition accepted Herzog’s plan; the government rejected it out of hand.
President Biden expressed concern about the judicial legislation and urged Netanyahu not “to continue down this road” and clarified that an invitation for the prime minister to visit The White House, something usually offered to Israeli prime ministers, would not be forthcoming anytime soon. Netanyahu shot back, “Israel is a sovereign country which makes its decisions by the will of its people and not based on pressures from abroad, including from the best of friends.”
The crisis came to a head the weekend of March 25-26. The coalition government’s Defense Minister, Yoav Gallant, announced he would vote against Levin’s legislative package because, in his view, it undermined Israeli security. Many reservists in the Israel Defense Forces threatened not to show up for duty (the Israeli military depends on its reservists) because they feared Israel was on the verge of becoming a non-democratic country. Netanyahu promptly fired Gallant, which has not yet been implemented. This action caused a spontaneous outpouring of Israelis into the streets and a decision by Israel’s largest union, the Histadrut, to declare a general strike. The following day the economy shut down, including a temporary closure of Israel’s Ben Gurion Airport.
With the atmosphere at a boiling point, Netanyahu announced that the judicial legislation would be “paused” until the next Knesset session scheduled to begin in May. He pledged to negotiate with the opposition under President Herzog’s auspices with a view toward finding a broadly accepted compromise. Lapid and Gantz agreed to negotiate, and the talks have commenced.
Will the negotiations be successful? Most observers are skeptical given the wide gulf between the two sides. Will the anti-government protests diminish? If the huge turnout in Tel Aviv last Saturday is an indication, the answer is no. Will the Palestinian issue — which these protesters so far have kept out of their discourse to maintain a focused message — begin to make an appearance? Will pro-government protesters start to come out in force? What happens if the sides don’t reach an agreement, the Levin plan passes, and the Supreme Court invalidates the legislation? Will the government respect the court’s decision? What will the army, police, and other parts of Israel’s security apparatus do? How will the Biden administration and Congress react? Those who care about Israel and the U.S.-Israel relationship, fasten your seat belts. We’re in for a bumpy ride.
Martin J. Raffel, resident of Langhorne, served as senior vice president of the Jewish Council for Public Affairs.
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