JERUSALEM — Israel’s right-wing government is pressing ahead with a divisive package of proposed legislation for a far-reaching overhaul of the judicial system, setting off mass protests by those who say it will destroy the country’s democratic foundations.
Advocates say the proposed changes are needed to curb the influence of an overreaching judiciary that has granted itself increased authorities over the years. They also say they would shift power away from an unelected bureaucratic elite — the judiciary — in favor of elected officials and governments that reflect the will of the people.
Critics say the proposed overhaul would place unchecked power in the hands of the government of the day, remove protections afforded to individuals and minorities and deepen the divisions in an already fractured society. They also fear that Prime Minister Benjamin Netanyahu, who is standing trial on corruption charges, could use the changes to extricate himself from his legal troubles.
With passions running high on both sides, prominent public figures have warned that the rupture could end in political violence or even civil war.
What does the government want to change?
One of the government’s main demands is to change the makeup of a nine-member committee that selects judges. Under current law, the committee includes three Supreme Court judges, two representatives of the Bar Association, two government ministers and two members of the Parliament, one of whom is often from the opposition.
To select Supreme Court judges with the required majority of seven, consensus must generally be reached among the five legal professionals and four politicians.
The new proposal would give representatives and appointees of the government an automatic majority on the committee, effectively allowing the government to choose the judges.
The government — the most right wing and religiously conservative in Israel’s history — also wants to curb what it calls the Supreme Court’s overreach by drastically restricting its ability to strike down laws passed by Parliament that it deems unconstitutional.
Bills under consideration would allow the 120-seat Parliament to override such court decisions with a bare majority of 61, and abolish the Supreme Court’s use of the grounds of “unreasonability” — a term the court uses to base decisions on vaguely defined ethical standards — to disqualify government decisions or appointments, as in the recent case of a minister convicted of crimes.
“We go to the polls, vote, and time after time, people we did not elect decide for us,” Yariv Levin, the justice minister, declared last month at a news conference where he unveiled his plan for the overhaul.
Another proposal would weaken the authority of the attorney general, who is independent of the government, and give ministers authority over the appointment and oversight of legal advisers within their ministries. Those advisers are currently under the authority of the attorney general.
Right-wing Israelis have long faulted the limits placed by the Supreme Court on some settlement activities in the occupied West Bank. Ultra-Orthodox Jews also resent the court for opposing measures that they value, including gender-separated public bus lines and wholesale exemptions from military conscription for all men enrolled in Torah studies.
Who opposes the plan and why?
Opponents say the proposed overhaul would deal a mortal blow to the independence of the judiciary and would change the Israeli system from a liberal democracy with protections for minorities to a tyranny of majority rule.
Unlike many other democracies, the critics note, Israel has no formal written constitution, only one house of Parliament, a mainly ceremonial president and no federal or geographic constituency-based system. That means the judiciary is the only check on government power, they say.
“I am here out of a real fear that the country will stop being a democracy,” said Oren Attiya, 31, a data analyst at a Tel Aviv high-tech company who was among some 100,000 people who thronged the roads around Parliament on Feb. 13 in protest against the government’s plans.
The government proposals have elicited a fierce backlash, largely from Israelis from the center and left of the political map, though many people who voted for the coalition have also expressed reservations and favor dialogue.
Many critics accept that some, more moderate judicial changes are necessary. But they have questioned the haste of the government in preparing the first tranche of bills for a preliminary vote in Parliament within weeks of being sworn in at the end of last year.
Israel’s chief justice, the attorney general, former prime ministers, business leaders and retired generals, among others, have warned of dire consequences should the judicial changes go ahead as planned.
Even President Biden has weighed in — like President Isaac Herzog of Israel, he has called on the government to build a broader consensus for changes based on compromise.
Where does Prime Minister Benjamin Netanyahu stand?
In the past, Mr. Netanyahu, the leader of the conservative Likud party and Israel’s longest-serving prime minister, was a staunch defender of the independence of the courts.
His recent appointment of Mr. Levin, a leader of the judicial overhaul, to the role of justice minister signaled a turnaround, even though Mr. Netanyahu has been less vocal on the matter and publicly promised that any changes would be measured and handled responsibly.
Mr. Netanyahu’s critics say his change of heart followed his indictment on charges of bribery, fraud and breach of trust and the start of his trial in 2021. They say he is acting out of personal interest, in the hope that aspects of the judicial overhaul may help him evade punishment. Mr. Netanyahu denies all wrongdoing or any personal interest in the proposed changes.
Citing a conflict of interest, the attorney general has barred Mr. Netanyahu from any involvement in the legislative process dealing with the judiciary.
Is there room for compromise?
In an impassioned speech broadcast live in mid-February, President Herzog warned that the country was on the brink of “constitutional and societal collapse.”
He laid out some basic principles that could serve as a basis for a compromise. Among them, he suggested altering the makeup of the selection committee for the appointment of judges to grant equal representation to all branches of government, along with public figures, but in such a way that no one side would have an automatic majority or veto power.
He also proposed limiting the Supreme Court’s use of “reasonableness” as grounds for rulings to certain types of cases and laid out a framework for legislation that would define the extent and limits of judicial oversight and the relationship between the court and the legislature, based on terms reached by dialogue and agreement.
The politicians driving the government plan said they were prepared to talk but rejected Mr. Herzog’s plea to pause the legislative process to allow room for negotiations. The opposition says it refuses to enter talks on the issue as long as the process pushed by the government keeps moving ahead.
A first reading of the initial bills will likely take place in Parliament at an unspecified date later this month, after which they will be returned to a parliamentary committee for further review.
It could take weeks or months for the process to be completed. Analysts say that any softening of the government proposals would likely occur during that period.