In the last months the Israeli public has demonstrated regarding a series of proposed judicial reforms. The protests led to the suspension of the government’s plans for the Passover break of the Israeli Parliament. The Knesset will reconvene this week and the next chapter of this saga will commence.
In this podcast, Assistant Editor of the Rule of Law section Teodora Miljojkovic discusses the reforms with Professor Adam Shinar, Associate Professor at Harry Radzyner Law School, Reichman University. Professor Shinar is a member of the Board of Directors of the Association for Civil Rights in Israel, and he is an academic advisory board member of the Israel Supreme Court Project at Cardozo Law School, Yeshiva University.
Teodora Miljojkovic: Not long after Benjamin Netanyahu was sworn as Prime Minister of the 37th Israeli government in late 2022, his cabinet presented a set of laws to overhaul the existing judicial system completely. Although the reforms are currently on hold, citizens from both camps have been protesting for weeks now. For someone who is unfamiliar with the Israeli context, it is perhaps hard to grasp the implications of such a judicial reform. As I understand it, there are main four aspects of this reform that stand out. The first one refers to the override clause, which would limit the competence of the Israeli Supreme Court in relation to the Knesset [the Israeli parliament]. There is also controversy with the change in the composition of the Judicial Selection Committee and the overall change to the appointment of judges. There is a further limitation on the Supreme Court competencies and, more specifically, the standard of extreme unreasonableness, which the government thinks is a huge problem. Lastly, we have a change in the role of the ministerial legal advisors. Could you shortly explain to us what these changes stand for, what their implications are, and if there are any other significant changes that this set of laws proposes?
Adam Shinar: These are basically the four pillars, the four main components, of what you describe. At present judicial appointments are the center of attention because of the protests. You are right to say that there have been protests from both supporters and those who oppose the plan. But it’s really not comparable in the sense that there are very few demonstrations from those who support the plan, both in terms of scope and number. The massive demonstrations that we’ve been seeing in Israel have been going on now for 15 weeks straight, with demonstrations every week. Each demonstration has had well over 100,000 people in Tel Aviv and also thousands of people elsewhere in the country. There is massive resistance.
Even the terminology here is important because you refer to these as reforms and the government refers to these as reforms. But protesters call it a revolution or a coup because reform has a positive connotation and they refuse to attach the positive connotation to these changes.
The present issue now is the Judicial Selection Committee, because that is the most advanced in the legislative process. It is past the committee stage and it is ready for the final hearing. The government has decided to suspend the final vote, but the suspension of the final vote is temporary. It is not really clear what’s going to happen with that because the Knesset has been on a Passover break. The issue will return soon to the Knesset. There are now discussions the sponsorship of the president on trying to reach some compromise. It is not really clear whether a compromise will be reached, and if compromise is not reached then the government has declared that once it resumes from the break it will proceed with the Judicial Selection Committee. That is the first stage, and that will clear the path for everything else.
So let’s start on each component. Since 1953 Israel elects its judges in a way that is quite different from a lot of European countries. It has a committee, and the committee comprises three Supreme Court judges, two government ministers, two members of parliament, sometimes one from the opposition, one from the coalition, but sometimes also two from the coalitions and two members of the Israel Bar, which means that it is a nine member committee. In order to appoint somebody to the Supreme Court, you need a majority of seven out of the nine. That means that every bloc cannot appoint somebody that it wants. There are only three judges. They need the politicians. There are only four or three politicians, depending on how you count. So they also need the judges and nobody can operate unilaterally. That leads to bargaining among the different groups in order to reach some consensus. What the government wants to do now with its new reform is change the committee and basically turn it from a nine member committee to an 11 member committee. That 11 member committee would still comprise three judges, but it would comprise more politicians and you would not need a special majority like seven of the nine. You would need only six of the 11 to appoint. And the government says that for each parliamentary term, the government or the coalition will have the first two appointments. It will not have to take into consideration what the judges say, or what the opposition says, and it will unilaterally appoint two judges. With the third appointment, you would need one member of the opposition to go along.
With the fourth appointment, you would need a member of the Supreme Court to go along. But the critics say that, because most governments do not get to appoint four or five judges per term, the Court will be politicized very quickly because most governments will only appoint two or three judges, meaning that these judges will be completely politicized and will give the government almost complete control of the judges.
In 10 to 15 years, the Supreme Court, which still is an institution that is comprised of judges who are appointed according to professional standards and not only political standards, is now only going to become political.
So the critics of the plan see this as a way for the government to capture the Court similarly to what has been going on in Poland and in Hungary. Of course there are differences, but that is how they identify the problem. They don’t look at this as only these two appointments – they look at it as inserting political, partisan considerations into a process in which these considerations were not very dominant.
They see this as completely corrupting the Supreme Court, and not just the Supreme Court, because this is the committee that appoints all judges to all the courts and decides on the promotion of judges from within the system. So they argue that the incentives in the whole system will be different and will become politicized both in the appointment process and the promotion process. This is a major, major change in the way that judges are appointed. People are concerned that judicial appointments in Israel are going to become somewhat Americanized, such as the idea that “this appointee is a Biden appointee, this is a Trump appointee, this is an Obama appointee”. The whole system will be identified along political lines. That is a huge shift from what it used to be. That is component number one.
The second component is changing the institution of judicial review. Since 1995, the Supreme Court has announced its power to strike down legislation. It did not have this power but, because of what is known in Israel as the constitutional revolution that followed the enactment of two Basic Laws dealing with civil rights and human rights, the Supreme Court said that these Basic Laws are supreme compared to regular legislation and when there is a conflict the Basic Laws prevail and the Supreme Court can pronounce on this conflict and strike out the statutes.
This is the motivation for this plan – the idea that the Supreme Court has become too activist and too involved in Israeli politics. Of course, this right-wing government also believes that this Court is too liberal, that it is out of step with current Israeli mainstream opinions.
Therefore, the judicial appointments change that we discussed is a way to bring the Court back into line, and to make it reflect the mainstream political positions in Israel. If this is not enough, the government is also going to revamp the institution of judicial review. The Supreme Court in Israel usually sits in panels of three, although sometimes it sits in panels of five or seven or nine, depending on the gravity of the situation. A regular majority is needed to strike down laws.
The new law says that this is not good enough. Striking down laws should be extreme and rare, although in Israel at present I have to say that it is rare. In the past 30 years, the Supreme Court has only struck down 22 provisions in laws. So we’re talking about less than one provision per year. But under the new plan the Supreme Court will only be able to strike down legislation if it sits in a panel of 15 judges. The judges can no longer decide panels of three or five or seven or eight, and the law will be struck down only if 12 of the 15 judges agree. So an 80% majority would be needed – a super-majority – to strike down legislation. Of course, there are countries with super-majority requirements for judicial review. Most countries do not have the supermajority requirements, but even in those who do, most of them are around 66% not 80%. I think that only two countries, maybe Chile or El Salvador, have 80% requirements. If this is not enough, the new plan says that even if you somehow managed under our new politicized system to get 15 judges and 12 of the 15 to agree, the Knesset would still have what is called an override clause.
The Knesset would be able to override the decision with a regular majority of 61 out of the 120 seats. Because Israel is a parliamentary system, every government has at least 61 seats. Otherwise it would not be a government as it would not enjoy the confidence of the Parliament. So, with a vote of 61, the Knesset can say “yes, we understood that you struck down the law, but we want the law to operate notwithstanding the Supreme Court decision. Therefore, we are going to reenact it.” In order to reenact the law in a way that will operate regardless of the Supreme Court decision, the Knesset will have to say explicitly that they are doing this regardless of the Basic Law. And with a 61 majority, which is not very difficult to assemble, that is judicial review.
Then there are two other components. It takes a long time to explain and it is complicated. What is really special about these so-called reforms is that you can really understand them when you zoom out and look at everything together – then you see how all the parts hang together. Another feature of the new plan is that the Supreme Court would not have the ability to review Basic Laws themselves. The Supreme Court has said that it has the ability to review also these Basic Laws, and not just ordinary laws. The new plan takes away that authority. The third component, as you mentioned, is limiting the reasonableness clause. Israel has a very robust unreasonableness doctrine and administrative law; it basically means that the Court can strike down not just acts that are extremely unreasonable or absurd or completely arbitrary and capricious, but also administrative measures that did not give the proper weight to competing considerations. This has also enabled the Court to intervene in a lot of what are called political matters. For example, the appointments of ministers, especially. The government is upset about a long standing doctrine in Israeli administrative law that reviews the Prime Minister’s discretion when appointing ministers. According to this doctrine, if the Prime Minister wants to appoint somebody and that person has been indicted for criminal charges but has not yet been convicted, the Court has said that it is unreasonable to appoint that person as a minister. The government rejects this idea. This is part of the motivation for changing the reasonableness clause.
The fourth component concerns the legal advisors in the executive branch. Right now, these legal advisors are independent. They are non-political appointments as they are selected by a committee that is essentially not a political committee. They are difficult to dismiss because the idea is they should be independent so that they can tell the government minister “look, you cannot do this” or “you can do this, but only in this way”. If they were subject to the will of the minister and they could be fired easily, then they would most likely go along with the minister even when there are suspicions of illegality. That was the concern. But the new government plan says that all the legal advisors will be political appointments. They will be hired and fired at the will of the minister. Also their advice will not be binding. In Israel right now, the advice of the legal advisor is considered binding by the Supreme Court. The new plan says that the legal advisor is only an advisor. The minister would be free to choose to ignore the legal advice.
What we really see is a very drastic, radical weakening of checks on government power – the government already controls the Knesset, because it has the majority, and the only breaks on the power are the Court, on the one hand, or internal breaks in the executive branch.
This plan weakens both the external checks by limiting judicial review and politicizing judicial appointments, and minimizes the internal breaks on executive power that come from such gatekeepers or veto players like legal advisors. So that is the basic architecture of the plan.
We can see that this is not just a judicial reform. This could imply a reform of the whole constitutional architecture of Israel when we consider the long-term implications. But let’s go back to the judiciary. You said that there is a problem when compared to the US. The problem in the US with the judiciary is that politicized appointments cause backlash on both sides. Usually it was the Republicans who wanted to minimize the Court’s participation in the political life of the citizens. But now we see the opposite. We see activist courts on the other side. So there is a need to rebalance the political influence of the Court because of this different majority. What are the constitutional lessons here? Let’s go back to the idea of “juristocracy”: does the Israeli government have any legitimate reason to claim that there is actually a need to restrain the Supreme Court politically?
The situation is very different because the US Supreme Court is very active. But, as you said, the Israeli Supreme Court did not very often strike laws down. So do you think that this idea of an activist Israeli Supreme Court is really accurate, so that it needs restraint? Or do you think it’s just a pretext which has no factual basis?
First of all, as a point of clarification to the listeners, unlike other constitutional courts the Israel Supreme Court is not just a constitutional court. In fact, very few of its cases are constitutional cases because Israel’s Supreme Court is a common law court. Most of the cases are criminal appeals and civil appeals and some administrative appeals. There are a very small number of actual constitutional cases that challenge the constitutionality of statutes.
So when we are talking about all these changes to judicial review and to judicial appointments, we have to understand that they are also going to affect regular cases – contract cases, bankruptcy cases, criminal law cases etc.
That is important to keep in mind when we compare to, for example, Europe, and we see how constitutional judges in Europe are appointed. Now, on the matter of activism, I think that these conversations are very difficult to have because it is not always clear who is being activist. First of all, one can definitely be activist both on the right and on the left. So it is not just something that leftists like or rightists do not like. What the right-wing in Israel has argued is that the Supreme Court has been activist in one direction mostly, which is the left direction. I think that this is relatively unsubstantiated. Of course in some areas the Supreme Court in Israel has been more liberal than the other political branches, maybe when it comes to free speech, equality, privacy, and things like that. But that is also to be expected in a way from a Supreme Court that sees its position as protecting human rights or political rights and as protecting minorities. But in many other areas the Supreme Court has not been activist at all, and in fact it has let the government do almost whatever it wants. The major example of that is the Israeli control of Palestinians in the occupation.
The Supreme Court hears many, many cases dealing with the occupation. But nine times out of 10, or even nine and a half times out of 10, the Supreme Court will reject the petition and will let the government do whatever it wants.
Think about administrative detentions, house demolitions, the construction of settlements, and a lot of other things. The Supreme Court has gone along and not intervened. Now, the Supreme Court has been activist in certain senses. For example, in the 1980s, the Supreme Court really relaxed its standing and justiciability requirements. It is true that almost everybody can come to the Supreme Court and file a grievance, and the Supreme Court will in principle hear a lot of issues. But if we put the rhetoric aside, that has not led to greater intervention de facto. It has led to greater potential intervention. I think that a lot of the arguments against the Supreme Court are not necessarily against this or that decision. There are those arguments as well, but also there are arguments about how the Court has positioned itself as a more powerful player than it used to be, and the Court has become, according to the proponents of the plan, such an important veto player that it is the ultimate decider.
If you go to these people and tell them that in the end the Court does not intervene, they will say that this does not matter. What matters is its potential to intervene. They point to the fact that we are not the final word, and the fact that the Court is the final word, and that it is willing to entertain any petition, even if it rejects a petition in the end. People still go to the Court and the Court reviews everything that we do: security things, political issues, foreign affairs, all these things. I think that this is true in a sense. It is true that the Court has become a more powerful player than it used to be 30 or 40 years ago. That is true in terms of intervention. Yes, the Courts sometimes intervene, but I do not think it is activist in a way that is very different from other Supreme Courts. But of course, if you talk to somebody else who supports the plan, they will point to particular decisions. They will tell you, for example, how the Supreme Court interprets the right to dignity in the Basic Law, and that it includes in free speech and equality in dignity, which are two rights that the Knesset purposefully left out of the Basic Laws because they could not reach a political agreement. Or they would tell you about how the Supreme Court has asserted its power to review Basic Laws and how it has adopted the unconstitutional constitutional amendment doctrine. There is no formal basis for that adoption.
So yes, we can point to areas where the Court has been activist, but de facto I think that activism is not as big as the supporters of the reform portray it to be.
I think that if you look at that activism from a political science perspective, then it is a compensation because of the lack of other checking mechanisms. Israel is not a federalist country. We do not have regional elections. We do not have two houses of parliament. We do not have a presidential system that can veto the parliament. We are not subject to any international court like the European Court of Human Rights. So I think the Court also understands this and they have decided that there is only the parliament, which the government controls and so there need to be more meaningful checks on government power. That has maybe been the motivation of the Court to adopt these things that may be perceived as activists, but they should be also considered with regard to the more basic structure of the system itself.
What we have here then is somehow the politicization of the government. So government depicts these basic Supreme Court competences on protection of human rights as ideological and political. However, is there more to this? Professor. Yedidia Z. Stern, in his incisive analysis for Jerusalem Post, stated that “[t]hose who oppose the reform as a whole and demonize the change seekers are wrong. Those who support the reform as a whole out of a sense that one had better “rush to the spoils” are also wrong.” Is there a legitimate need to change the Israeli judicial system, and what would the reasons for that be?
No system is perfect and any system can need changes. The problem is that these changes do not address the real problems. If we acknowledge the real problems in the Israeli judicial system, these reforms are not going to fix these problems. The problems are not that the Court strikes down too many statutes and therefore we have to have a majority of 12 of the 15 judges. The problem is that we need an override clause for those 22 provisions that the Supreme Court has struck down in the past 30 years.
The Israeli legal system as a whole has real problems. It is a system that bureaucratically is underperforming. There are a lot of case and too few judges, so there are a lot of backlogs.
The experience of being a litigant is not a pleasant experience. Nobody wants to go to court because it could take them forever to reach a decision. And I’m not talking about the Supreme Court, I am talking about the regular lower courts.
There needs to be better criminal proceedings. There needs to be more awareness of defendants’ rights and criminal procedure rights. There need to be more judges. On the whole, the Supreme Court is too busy. Maybe there could be another appellate function. There are other reforms one could think about. One argument that the proponents of the reforms are saying is that there is not enough diversity in the judges. They just come from one sector, they are mostly Ashkenazi Jews or they are men and so on. If people want more diversity, I think that this is true especially for the Supreme Court, but not so much for the lower courts. There are things that people can do to achieve more diversity. Although I think that the diversity argument is problematic because there are some groups that are overrepresented and so forth. But I think a lot of the problems that the Israeli government have do not lie with the Court. It’s just not true to say that there is only a huge diversity problem with the Court. The problems of Israeli society are elsewhere and we see this with these reforms.
So the protests started out as protests against these reforms.
But a couple of months into the demonstrations, the protests have really transformed into something else. They are not about the reasonableness clause. They are not about the judicial composition. They are about really the nature of this country.
These reforms have revealed that there are a lot of deep divisions and polarization among the Israeli publics about whether this country will be or can be a liberal country versus forces that are perceived as illiberal, conservative, fundamentalist religious forces who also support the reforms. These people regard these reforms as only the first step. They are telling themselves “look, the government wants to pass reforms, but there are no real problems with the judiciary. So why do they want these reforms?” And the answer has to be “well, they want to weaken the internal and external checks on power because after they do that, then they’re going to advance their real substantive policies. And they realize that if they advance their substantive policies now, those policies will likely be struck down by the court.”
So people are worried about the day after the reforms and the discriminatory policies that may be adopted towards women, LGBT members, and towards Arabs. They also ask: what about the occupation, and the policy regarding Palestinians?
Critics are concerned about the deterioration of civil and political and human rights more generally. But they are also concerned about these reforms being only the gateway for the government entrenching itself in power and making its replacement very, very difficult, similarly to what you see in Poland, Hungary and in other places.
They identify this as the government accreting and concentrating a lot of its power, thus weakening other checks on power. That would enable it to continue to exert all this power come next election and ensure that it is going to be elected again. I think that is driving concern. I do not think that the issue is really about how the judicial committee looks anymore. Of course that is an important issue, but I think that is only the prelude to what we’re seeing now.
Now that you have mentioned the comparison to Hungary and Poland, we can obviously see this illiberal aspect. Would you say that these reforms are one step towards an illiberal state in Israel? The Israeli situation is very different because, for example, the EU has been the main opposing force against the illiberal forces in Hungary and Poland. So what can be done in Israel? When a government wants to entrench its power, the first thing they are going to do is capture the courts as the courts are the most vulnerable actors in the system. So what is the source of judicial resilience and judicial independence if there are no external mechanisms in Israel? We see now that there is a huge political effort to protect the court. But are there mechanisms within the constitutional design itself to protect the judiciary? Or do we simply need to have a different perspective and see that the courts are not just these institutions, and their prerogatives are not just written in some document, but that they are definitely entrenched within the society and they depend on society, but also society depends on them?
I think that both aspects are correct. I think that there are some guarantees of judicial independence in Israel but there is also a culture of judicial independence. In terms of guarantees, judicial independence is enshrined in Basic Law. Once appointed, the judges serve until they are 70 years old. It is very difficult to dismiss and fire judges. The same committee that appoints them has to dismiss them. But then it requires a super-majority. In the history of Israel, only one judge has been fired or dismissed through this committee. And of course their salaries are determined independently and they have immunities, for example they cannot be sued for their decisions using torts law.
So we have all these mechanisms that ensures judicial independence, but we also have a strong culture of independence. I think that one of the differences between Poland and Hungary and Israel is that Israel has a longer track record with democracy.
Poland and Hungary became democratic after the communist collapse, but that was only from 1989 and it takes a long time to build a democratic country.
Israel has been a democracy since 1948 –75 years now. This is not to say by any means that Israel is anywhere near a perfect democracy. Obviously the situation with Arab citizens inside Israel and the vast discrimination and the control of millions of Palestinians who do not have the right to vote for their representatives while the Israeli military controls them casts a whole question mark over whether Israel can even be considered democratic. But Israel does have democratic institutions, it does have free elections. It does have, inside the green line in Israel, civil, political, and human rights and an independent judiciary and a culture of the Rule of Law. This was present pretty much from the beginning, maybe in a nascent form, but it has developed and become entrenched and it is reflected in the provisions that I mentioned. It is also stronger because much of the public identifies the Court as a liberal institution tasked with the protection of individual rights. The huge support that you see now for the Court comes against this background of this culture of judicial independence and democracy that has been built for 75 years.
Even if Israel democracy were to collapse completely one day, and I do not think it will, that deterioration would be slower than other countries whose experience with democracy has not been so substantive and has not become so entrenched.
This is an aspect that we do not see discussed very often in literature. When we discuss the liberal regimes, we discuss them mostly in the present, but we do not discuss how they reached that point. Israel also did not begin at this point. It was not extremely liberal in 1948 or 1952. It has also evolved. But I think that it is also important to remember that Israel always was a very polarized country with many minorities and groups. No group single-handedly has ever managed to gain complete power over the Parliament. Other groups have to be taken into consideration – secular and religious, ultra-orthodox Jews and Arabs, Ashkenazi Jews and Mizraki Jews, men and women, etc.
All of these groups vying for political control has generated a very pluralist political system and no one single party can take control of Parliament. So there is always a need for concessions and compromises and everything is vulnerable.
I think that vulnerability has also prevented mass authoritarianism because the political apparatus to carry out authoritarianism does not exist unlike, for example, Fidesz in Hungary which has two-thirds control of Parliament and can unilaterally amend the constitution.
We see here how institutional design depends on the constellation of power and the political situation in a country. But you mentioned that because you said that there is like a track record of an independence and Rule of Law culture. Is this idea of restraining the Supreme Court something that this government devised? Or was there any other clear political will to change course in relation to the activism argument before this government?
So I think it is actually both. There have been other attempts by previous government to reform the judiciary, such as to introduce an override clause, or to change the powers of judicial review. But things are now different in several senses. First of all, the previous governments or members of the Knesset that tried to enact these reforms the Knesset never had the majority do it. Even if you look at just the governments of Benjamin Netanyahu there was always at least one member of the coalition that opposed reforms. So the government was not unified on these reforms and therefore there was always at least one actor from within the government that vetoed the reforms and they never passed. What is different now is that all of Netanyahu’s government is completely behind these reforms. It is a very right wing coalition. There are no centrist elements, and there are very few liberal elements in the government.
All of the parties in the coalition want these reforms for their own different political reasons and needs but they are unified and they are coherent. You did not have that coherence in previous governments.
These reforms are also much more ambitious than those proposed in the past. Those opposed in the past always dealt with one aspect. These reforms are trying to do everything at once: the legal advisors in the executive branch, the unreasonableness clause, judicial review, the override clause, and judicial appointments. We have never seen something on this scale before.
The government presents the reforms as if they have the people’s will to do this. But the government also says that these reforms are nothing bad because they happen in other countries and these concerns arise in other countries too. In the opinion of Israel’s Attorney General Gali Baharav-Miara on the draft bill on the judiciary, she states that the legislation misses the point as it refers to comparative constitutional design and practices in other countries as a justification for the reform without the necessary factual underpinning. What is your take on using and abusing the reference to the authority of comparative law? We have seen this technique being employed by illiberal European governments as well. Should we prevent it and if so how?
I think that it is impossible to prevent this completely because people will use whatever arguments are available. It is also very different when we talk about comparative constitutional law as experts in the field who are aware of all the methodological problems as opposed to using these arguments as a political weapon on a public that obviously does not know all the details. And of course, why should it know? They are not comparative constitutional lawyers. So the government has been doing that, but with limited success. Once it started making these comparative constitutional comparisons, academics such as myself intervened. I am also part of this professors’ forum for democracy that has started to publish a lot of position papers tackling and unpacking all these arguments and showing how they collapse. So the government, for example, has been saying “look, Canada also has a notwithstanding clause, right? Or Finland also has a notwithstanding clause. Finland is democratic, Canada is democratic.” And then it’s up to us to say “yes, of course, but the notwithstanding clause in Canada operates differently. It doesn’t apply to all rights. Look, Canada is a federal system. It has provinces that decentralized political power, it has two houses of parliament. And therefore the notwithstanding clause will not operate in Israel like it operates there.” And we are making the same rebuttals about all the other organizations, about judicial appointment, and so and so. But I think that it is also important to realize that comparisons can go both ways. But in the end, I think that we are also realizing that these comparisons do not matter. Even if Canada or Finland were exactly the same system as Israel, that still would not mean that it would be a good idea. You are only picking the features that you like, but you are ignoring the features that you do not like and you do not import them. Even if things were completely identical, transplants are never identical because they operate against the background of a very different political ecosystem and a very different political culture.
A mechanism that would operate in the UK would not operate in Israel in the same way because the English have a different political culture. In Israel we say that the British have this political consciousness that even if a certain act is legal, it is completely inappropriate to do it. We do not have this in Israel because there is a lot less political shame. So you cannot just adopt an institution and think that it will operate in the same way that it operates in a different country, while ignoring all the political and social norms that surround how this institution operates. Therefore these comparisons have some utility because you can expose their fallacies. But even if you cannot do that, it is also important to consider that they will not operate in the same way. So, for example, the UK has under the Human Rights Act the “incompatibility declaration.” The Court cannot strike down statutes, but it can declare that they are incompatible with the Human Rights Act. Then Parliament can choose to amend these laws and Parliament almost always amends these laws. But from the way that I see the Israeli political system operate, that just would not happen. If the Court declares a law to be incompatible with the Basic Laws, the Knesset does not feel a special urgency to amending this law because the political system is different. We have to acknowledge this when we do all these comparisons.
Professor Yotam Margalit noted that these reforms are not just dangerous from the perspective of the separation of powers or the Rule of Law. They may imply more dangerous consequences as they could announce the “end of democracy in Israel.” I think you described quite well in what way this entrenchment of power can go further. But my question now is what can prevent this? Do you think that these protests from people opposing the reform are strong enough to stop it? Or do you think the President perhaps could have some more decisive role, or NGOs, or all combined? What is the main force that could essentially stop the government undertaking the reforms?
I think that the government was taken by surprise in the sense that it did not expect these protests. I am sure they expected some protests, but they did not expect to see 15 weeks of straight protests.
The numbers of people that have been protesting has been astounding and is unparalleled in the history of Israel, which has seen many protests in the past.
Nothing comes close to what has been going on in the past three months. I think that is a major reason why the government has now suspended the laws. Of course, this is only temporary and they are doing this because they want to negotiate, but just the fact that they could not pass these laws as fast as they wanted is testament to the power of the protest. Therefore, I think that the protests do have a lot of power. But it is not just the protests alone.
We have also seen military reservists saying that they will not show up for military reserve duty if these laws pass because they do not want to serve under a country that is not democratic. We have seen high tech companies saying that if these reforms pass, they will relocate their activity to outside of Israel or will transfer their funds to bank accounts outside of Israel. We have seen that Moody’s credit rating for Israel has remained the same, but its projection has declined from positive to stable. We see some international pressure. President Biden has expressed concerns about the plans and already said that Netanyahu will not come to the White House anytime soon. So all of these things together – the international pressure, the economic pressure, the protests, the high tech, the professors, the academics – are playing a role. I think that they have already been successful in severely slowing down the reforms. If the protests continue to this extent, or even increase and more pressure is applied – for example, if there are general strikes –then I think that we might see more achievements. But the President of Israel is not playing a significant role in this. The President has played a more significant role in the past. The President offered his own plan, which was rejected by the coalition. The Presidential tradition in Israel is more symbolic and ceremonial. But I think the civil unrest and the civil protest has been so massive that it will likely be successful. It is not clear how successful it will be. Will it stop the reforms completely? Maybe not. But will it be able to moderate or dilute some of these reforms? Probably, yes.
Do you think that the society is well informed about the implications of this reform? Do people who support the government know what they are really defending? And why would society have such a huge wish to limit the Supreme Court if that is the case? Or do you think that this support for the reform is just derivative of support for the government?
So it is all of the above. The ultra-orthodox want these reforms because they want to be exempt from military service like they have been in the past. They view the Court as an opposition to that exemption because the Court has struck down that exemption in the past on equality grounds. The religious Zionists see the Court as an institution that interferes with the occupation or the annexation of Judea and Samaria territory. So their support for the reforms is not completely baseless and it is attached to their political support. A lot of the people who support the plan, whether rightly or wrongly, view the Court as a non-democratic institution that does not represent people like them. They view themselves as second class citizens because they go to the polls and they vote for particular right-wing parties and then these right-wing parties supposedly cannot enact the policies that they want because the Supreme Court or the legal advisors stopped these policies.
Now, of course there is a kernel of truth to that. But the reformers have made that kernel into popcorn. They have expanded it completely and engineered this perception that the Supreme Court is the source of all evil in this country. Some of these people know what the plan is and they support it. Some of them are also informed by fake news, propaganda, or exaggerations. And many others are ignorant in the sense that people are often ignorant about many, many things. The Israeli public has learned a lot about Israeli legal institutions in the past three months – much more than it knew in the past. Of course, they do not know all the details of the plan. But the people who protest these plans, see that, even if they do not grasp every technicality and provision, they understand deeply that the reforms are a threat to liberal freedoms and that is enough for them to go and demonstrate.
Public opinion polls show that a significant chunk of number of people who are against the plan are people who voted for this government. So it’s not 50:50.
Between 25-35% of people who voted for parties that are in power now in the government also do not like the plan. It is not simply the case that if you voted for these parties, then you are in favor of the plan.
Many supporters of the plan are using this to argue “look, why do you need the Court? Look, we’re having a democratic conversation here. We’re having an exercise in political constitutionalism, and you want to protect your rights here. You’re protesting and you’re writing and doing all these things.” Of course, it is a problematic argument, because often what the Court does is protect those who cannot rally 150,000 people every weekend for 15 weeks straight.
For our very last question – what’s next? When can we expect some changes to see whether it is for good or bad? What plan does the government have, if there any plan?
Well, the government does have a plan – they are doing two things. Parts of the government have announced that if the talks fail once the Knesset resumes then they will proceed as planned. That is always a threat.
There are talks right now being held between two opposition parties and the government, and it is too soon to tell if there will be any agreements or any compromises reached.
There have been some offers on the table. It is not really clear what the opposition will say about these offers. A lot depends on what is going to come out in the next following weeks, and whether a compromise will be reach or not reached. If the compromise is bad in the opinion of the protestors then the protests will continue, and then who knows what will happen? It is a question about how much longer these protests can be sustained. It is a question about whether we’re going to see a constitutional crisis in the future. There is a question about whether the Supreme Court would strike the reforms down themselves if people petition against these plans. So everything is on the table, and I am very reluctant to make predictions.
This transcript has been edited for length and clarity.
In collaboration with Oliver Garner.