Israel’s Government Proposes to Limit Court Powers

 By Henry Srebrnik, [Moncton, NB]  Times & Transcript

Following a string of inconclusive elections in Israel which resulted in unstable minority governments, Benjamin Netanyahu’s Likud Party finally managed to cobble together a working coalition in the wake of last November’s general election, the fifth in less than four years.

The government comprises 64 of the 120 members elected to the Knesset, the Israeli parliament. It is the most right-wing and religiously conservative in Israeli history.

Of its members, 32 are in Netanyahu’s own right-wing Likud party. The other 32 are disciples of religious parties, which can be divided into three factions: The largest alliance, with 14 seats, are a group of religious Zionist formations, preoccupied with preserving rabbinic privileges such as supervision over marriage, burial, conversion, and dietary laws, and state-supported religious schools.

Shas, with 11 seats, is a populist, anti-élite party of Orthodox Mizrahi immigrants from North Africa and the Middle East. The Haredi, or ultra-Orthodox, with seven seats, represent self-segregating communities originating in eastern Europe, living mainly in and around Jerusalem.

The new government has caused dissension as never seen before. Even two Israeli ambassadors, to Canada and France, have resigned. Ambassador to Canada Ronen Hoffman left Jan. 22, following ambassador to France Yael German, who resigned from her post last December.

In a tweet, Hoffman wrote: “With the transition to the new government and to different policy in Israel, my personal and professional integrity has compelled me to request to shorten my post and return to Israel this summer.”

Many people in Israel have expressed their concern over various aspects of the new government’s policies regarding an array of issues. But the one that seems to be most prominent is Prime Minister Netanyahu’s desire to limit the powers of the Supreme Court. Netanyahu has insisted that the reforms will strengthen democracy.

Over the past few weeks, tens of thousands of Israelis have attended rallies in Haifa, Jerusalem, and Tel Aviv to vent their anger and outrage at Netanyahu’s controversial proposal to radically overhaul the judicial system.

Justice Minister Yariv Levin officially announced his intention to pass this sweeping legislation at a press conference in the Knesset on Jan. 4. Levin, a confidant of Netanyahu, explained that the overhaul would broadly restrict the Supreme Court’s capacity to strike down laws and government decisions by means of an “override” clause.

Claiming his legislation was “long overdue” and designed to limit the influence of an unelected court over an elected parliament, Levin contended it would strengthen democracy, rehabilitate governance, restore faith in the judiciary, and rebalance the three branches of government.

The reforms Netanyahu has in mind would deal a “fatal” blow to Israel’s future as a liberal democracy, Supreme Court President Esther Hayut had warned two days earlier. These seminal changes would undermine judicial independence, give the Knesset, Israel’s parliament, free reign to pass legislation that violates basic civil rights, and emasculate the high court’s role as a check on executive power. “This is a plan to crush the justice system,” she bluntly declared.

In the 1990s, Aharon Barak, then the chief justice of Israel’s Supreme Court, had pronounced a “constitutional revolution” and arrogated to his institution more power, including the right to overturn any piece of legislation.

The Court now also wields the power to override the elected government’s selections for Cabinet-level ministerial positions, as it did when it vetoed Prime Minister Netanyahu’s choice for minister of health and minister of the interior, Aryeh Deri of Shas.

The court had said Deri’s appointment “cannot stand” and ordered Netanyahu to dismiss Deri, citing his 2022 plea-bargain conviction for tax fraud. Netanyahu has abided by this decision. “I am forced with a heavy heart, with great sorrow and with extremely difficult feelings, to remove you from your position as a minister in the government,” he told Deri.

Deri’s Shas party immediately hit back, calling the court decision “arbitrary and unprecedented.” The Sephardi religious party contended that the court “today threw away the voices and votes of 400,000 voters of the Shas movement.”

Netanyahu is himself under criminal indictment in connection to a separate corruption investigation and is blocked by law from holding any cabinet seat other than the premiership. And yet his government is pushing through dramatic judicial overhaul legislation that could impact his legal situation. 

There’s an interesting Canadian angle to this. Those who want to limit the court’s powers have pointed to Section 33 of Canada’s Charter of Rights and Freedoms, the “notwithstanding” clause, which allows jurisdictions to temporarily “override” other sections of the document.

But the Canadian clause was passed to protect the rights of a province within the federal system. Because Israel has no constitution, no bill of rights, and no second parliamentary chamber, the High Court is the only check and balance in existence.This will give a government total control, based on its Knesset majority.

Netanyahu has won a record five elections, more than any other prime minister in the country’s 75-year history. He is Israel’s longest-serving prime minister, having served for a total of over 15 years, from 1996 to 1999 and again from 2009 to 2021, prior to regaining power.

This time around, he is determined to pass his government’s agenda, regardless of what his opponents, within the country and abroad, think.