A Coup in Review
July 21, 2023
In the absence of unanticipated twists — and there are none anticipated — the Israeli Knesset stands on the precipice of a vote that will profoundly reshape the balance of powers in the nation. The Knesset is scheduled to give its final approval to the constitutional amendment that will curtail the Supreme Court’s authority to invoke “extreme unreasonableness” when scrutinizing the actions of governmental and elected officials.
This bill is a seismic shift beneath the surface of Israeli democracy. An overwhelming majority of legal experts in Israel and abroad have expressed their opinion that this bill in its present incarnation hands over extraordinary powers to the executive branch. The bill effectively undermines the democratic balance of powers in Israel.
In an attempt to mitigate criticism, Prime Minister Benjamin Netanyahu circulated a brief video asserting that the proposal to remove the “unreasonableness” criterion is based on a suggestion by Supreme Court Justice Noam Solberg. Notably, in Israel's Supreme Court public commentary by justices is rare. However, Justice Solberg, a markedly conservative figure on the court, released a public statement clarifying that his original proposal, offered in a public speech, was not intended to serve as a basis for legislation, but rather as internal judicial guidance.
The ruling coalition has fast-tracked the legislative process to ensure the bill's passage before the Knesset's summer session concludes next week. The timing coincides with Tisha B'Av, the solemn day of fasting that commemorates the tragic destruction of the ancient Temples in Jerusalem and the exile of the Jewish people. For many, this is all too symbolic.
Over the past week, continuous hearings on the bill have been held by the Knesset's Constitution, Law and Justice Committee. Despite escalating protests, mounting public pressure, threats from Israeli Defense Force (IDF) reserve volunteers (especially combat pilots) to withdraw from service if the bill passes, fears of deteriorating IDF cohesion, and even an appeal from U.S. President Joe Biden to seek broader consensus on the legislation, the coalition has not only persisted but also further intensified the bill's anti-democratic provisions.
The final version of the bill, slated for approval next week, doesn't merely limit the court's authority to review the actions of elected officials. It also withdraws the court's power to review any failure to act by public officials. This critical modification would potentially allow Justice Minister Yariv Levin to indefinitely delay the convening of the Judicial Appointments Committee, pending another coalition-supported judicial coup legislation that would grant them complete control over judicial appointments.
High-level meetings between Prime Minister Netanyahu, Defense Minister Yoav Galant, and IDF Chief of Staff Maj. Gen. Hertzi Halevi have underscored deep concerns within the IDF that the ongoing protests undermine the army’s social cohesion and thus endanger national defense.
Regardless of the concerns, Netanyahu, in a televised address on Thursday, confirmed the coalition's intent to move forward with the “unreasonableness” bill while steering clear of mentioning other pending legislative proposals, suggesting the coalition's intention to push these forward as well.
Likud party ministers David Amsalem and Mickey Zohar launched attacks on reserve pilots opposing the legislative change, with Amsalem, in a particularly vitriolic Knesset speech, also criticizing Attorney General Gali Baharav-Miara, blaming her for the civil unrest and labeling her "the most dangerous person in Israel."
The Attorney General, in turn, disclosed pressures she faced "to make certain decisions in certain cases," possibly referring to the Netanyahu's corruption trial and pressures to dismiss the bribery charge. She remained resolute, stating "I will not back down."
The Supreme Court, in a surprising show of resolve, mirrored this steadfastness. The court agreed to entertain a petition contesting Netanyahu's legitimacy to serve as Prime Minister. The petition posits that Netanyahu is blatantly and unlawfully breaching his obligation to abstain from any matter that could bear on his trial. This case is slated for a hearing in September, to be presided over by Chief Justice Esther Hayut, whose retirement looms in October.
However, for many, this is a belated move. The masses that oppose the judicial coup perceive the upcoming vote in the Knesset as a defining moment — a stark and unforgivable transgression of the social contract between the state and its citizenry.
Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.