Israel: Controversy over Judicial System Changes and Proposals

Israel: Controversy over Judicial System Changes and Proposals

INSIGHTi

Israel: Controversy over Judicial System
Changes and Proposals
August 4, 2023
In July 2023, the Israeli Knesset passed a law to limit the judiciary’s use of “reasonableness” in reviewing
government decisions. This law was one of the government’s January proposals from Prime Minister
Benjamin Netanyahu’s coalition to reduce the judiciary’s power to check government action.
The proposals—which Netanyahu and supporters say would provide corrective balance within an Israeli
system that lacks explicit constitutional boundaries to judicial review—have triggered a charged national
debate, including mass protests. Some opponents to the proposals have asserted that they might alter the
character of Israel’s democracy, potentially impacting the ongoing criminal trial against Netanyahu and
worsening tensions with Palestinians. Such changes could have implications for U.S.-Israel relations.
The coalition passed the July reasonableness law after compromise talks with opposition leaders stalled.
These talks began after Netanyahu delayed other proposals in March that would have given the
government control over Israel’s Judicial Appointments Committee (JAC) and allowed the Knesset to
override most decisions of the High Court of Justice (HCJ). Netanyahu instituted that delay in the face of
major civil disobedience, saying he wanted to “prevent civil war.”
The July legislation amends Israel’s quasi-constitutional Basic Law on the judiciary by preventing judges
from overturning administrative decisions they find “unreasonable in the extreme.” Supporters of
removing the reasonableness test argued that it infringed on the government’s popular mandate, and also
that courts could still invoke other common law doctrines—like proportionality, anti-discrimination, and
conflict of interest—to review government decisions. Opponents maintained that the reasonableness
standard was necessary to protect uncodified rights and prevent public corruption.
The Knesset may consider additional legislation affecting the JAC. Netanyahu has said that the coalition
is willing to try until sometime in November to “reach a comprehensive agreement” with the opposition,
but opposition leader Yair Lapid has demanded an 18-month moratorium on further judiciary-related
legislation before resuming talks.
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Popular Reactions and Potential Court Review
The proposed judicial changes have polarized much of the Israeli populace, with broad divisions manifest
between:
• Opponents, many of whom are members of the largely secular and Ashkenazi (Jews of European
origin) communities that have traditionally held leading roles in government, the military, and the
burgeoning high-tech sector; and
• Supporters, including many from certain groups with growing populations like West Bank
settlers, Jewish nationalists, and the ultra-Orthodox (some of whom hail from a Mizrahi, or
Middle Eastern Jewish, background).
Since January, hundreds of thousands of opponents have joined in regular non-violent protests against the
proposed changes, with thousands of supporters engaging in non-violent counter-protests. A July poll
suggested that Israelis support a compromise-based judicial reform process over the government’s
proposals by a more than two-to-one margin, and that majority approval of popular protests does not
extend to disruptions of traffic or airport access, or to refusals to report for military reserve duty.
The HCJ is planning to hold a hearing on petitions challenging the reasonableness law on September 12.
Disagreement between the HCJ and Knesset majority on the law’s implementation could spark a national
crisis. To date, the HCJ has not invalidated any of Israel’s Basic Law provisions, but has indicated it could
reverse provisions that fundamentally change the nature of democracy in Israel or abuse the constitutional
process. One Israeli legal expert has speculated that possible red lines for the HCJ could be if the
government tries to replace the attorney general or change the composition of the JAC.
General Assessment
The following implications of the judicial system changes and proposals have relevance for Members of
Congress contemplating legislative and oversight options.
Israel’s security and economy. Reportedly, thousands within Israel’s military reserves have threatened to
suspend their service, and some in the workforce (including doctors) have gone on strike or warned that
they might. Consequently, observers have raised questions about effects on the country’s defense
readiness and economic strength. According to a media report citing an unnamed U.S. official, the
Pentagon “is concerned that the crisis facing the Israeli military could have negative implications for
Israel’s deterrence strategy and encourage Iran or Hezbollah to conduct military provocations that could
escalate the situation in the region.”
Reportedly, the Israeli military may be more concerned about reduced cohesion, readiness, and
recruitment over the long term than an immediate breakdown in performance. One source argues that
highly-skilled reservists like fighter pilots who stop volunteering would probably return in the event of a
crisis.
Possible democracy, governance, and regional/international implications. Much debate surrounding
potential changes to the judiciary focuses on their meaning for Israeli democracy and governance. Some
argue that weakening judicial review could enable certain government actions, such as expanding Israel’s
West Bank control at Palestinians’ expense, increasing economic preferences and military service
exemptions for ultra-Orthodox Jews, or altering minority rights and the religious-secular balance in Israel.
Some debate whether Israelis might face legal prosecution in international fora if the independence of
Israel’s judiciary arguably erodes. Additionally, developments regarding Palestinian issues could impact
ongoing U.S. efforts to facilitate Israel-Saudi Arabia normalization.

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Netanyahu’s legal future. Some have speculated that legislative changes could lead to Netanyahu
replacing the current attorney general with one amenable to dismissing the legal case against Netanyahu.
One source quoted Netanyahu as saying he would not make such a move, while citing an Israeli legal
expert who questioned Netanyahu’s credibility.
U.S. reactions. President Biden’s efforts to steer Netanyahu toward compromise have generated debate
about U.S. input into Israel’s domestic politics. Members of Congress have voiced varying opinions on
Israel’s legislative proposals and U.S. involvement. Some have joined letters or a proposed resolution
expressing support for judicial review and liberal democracy in Israel. Others have stated support for
Israel to handle its own democratic decisions and/or advised U.S. officials to stay out of the process.
Some observers question the potential impact on U.S.-Israel relations of a perceived divergence in core
values.

Author Information

Jim Zanotti

Specialist in Middle Eastern Affairs

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