A Coup in Review
August 11, 2023
During the Knesset's summer recess, as the Supreme Court readies itself for historic hearings on a series of constitutional petitions related to the judicial coup, the government is actively outlining its next moves.
Earlier this week, Prime Minister Benjamin Netanyahu engaged in an interview with Bloomberg. Media experts in Israel have pointed out that this was the 22nd interview Netanyahu has granted to U.S. media, while only giving a few to Israeli outlets, since his government’s inception. Bloomberg’s headline “Netanyahu Seeks to Change How Judges Are Named, Then Stop Revamp” shines a light on another manipulation by Netanyahu.
Should Netanyahu’s coalition succeed in altering the Judicial Appointments Committee’s composition, it will essentially control the judiciary. Aside from the judiciary, there are no other checks or balances against the immense power of the executive branch in Israel’s fragile and thin democracy. Consequently, if the judiciary is captured, there is no need to advance any other parts of the judicial coup.
Justice Minister Yariv Levin, one of the architects of the judicial coup, considers this legislation the most vital and pivotal pillar of the planned transformation. Should the Knesset pass this legislation in the upcoming winter session beginning at the end of October, it will mark the moment when Israel ceases to be a democracy.
Also this week, the Israeli Supreme Court scheduled oral hearings for two landmark cases. The full court, comprising 15 justices, will hear more than eight petitions that challenge the amendment to the Basic Law: The Judiciary, which has abolished the “extreme unreasonableness” standard.
In a unanimous technical decision this week, the Supreme Court directed that both the Knesset and the Attorney General be the first to argue on the legislation’s validity, with the petitioners responding. This order doesn’t imply that the Supreme Court will necessarily invalidate the Basic Law, but ensures that the hearings remain focused and a ruling be issued promptly.
Another technical decision underscores the Supreme Court’s caution in invalidating laws, and even more so regarding Basic Laws. At the end of September, the court plans to hear oral arguments about petitions to abolish the amendment to the Basic Law: The Government, commonly referred to as the “Recusal Law.” This law aims to shield Netanyahu, despite his violation of commitments not to interfere in state matters that might influence his ongoing criminal trials, from potential removal from office by the Attorney General.
In a demonstration of judicial restraint, the Supreme Court made it clear that it would not consider invalidating the law, even though justices acknowledged that the legislation was enacted for “clearly personal” reasons. The justices declared that the hearing would center solely on whether the law should be implemented without delay or postponed, most likely until the resolution of Netanyahu’s conflict of interest.
While this situation may initially appear disadvantageous for the Prime Minister, he has no reason to worry. There is a broad consensus among legal experts that forcing Netanyahu’s recusal for violating his commitments to prevent conflicts of interest is an exceptionally improbable and severe course of action. Attorney General Gali Baharav-Miara has expressly stated that she is not entertaining this possibility.
Therefore, the only obstacles to Netanyahu’s government fulfilling the goals of the judicial coup are the Supreme Court’s 15 justices and the persistent opposition of democracy-loving citizens rallying in Israel’s streets.
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.