Netanyahu Government Moves Forward with Judicial Reforms as it Loses Support of 4 MKs

Israel Supreme Court Jerusalem (Wikipedia)

Prime Minister of Israel Benjamin Netanyahu woke up Sunday morning facing a coalition crisis after his Defense Minister, Yoav Gallant, who is a member of Netanyahu’s Likud Party, announced that he cannot support the government’s controversial judicial reform program currently before the Knesset. In his statement, Gallant cited the current divisions in the country the plan has caused, specifically increased threats by many Israelis not to perform reserve duty in the IDF, as his reasons.

Gallant has since been joined by three other Likud Party members in the Knesset. Netanyahu’s coalition government has a majority of 64 votes in the 120-seat Knesset and needs 61 votes – an absolute majority – to pass the judicial reforms. Even should these four MKs abstain in a vote or not appear for one, a simple majority vote of 60 MKs in favor, no matter how few votes against, will not be sufficient to pass the reforms as they are defined as “Basic Laws.” A Basic Law is a law of government in Israel and can only be passed with an absolute majority vote.

Gallant’s move came after repeated efforts by Israel’s President Isaac Herzog to negotiate a compromise solution between the government and the opposition in the Knesset. The President of Israel is a ceremonial position, which made Herzog’s release of his own compromise proposal a few weeks ago so significant.

Prime Minister Netanyahu rejected that proposal because, he said, it did not resolve the problem of what he feels is an “undemocratic” lack of balance in authority between the Knesset and Israel’s Supreme Court due the Court’s having taken upon itself too many powers.

Gallant was expected to make this announcement Thursday night, but canceled a press conference at the last minute after he was called to a private meeting with Netanyahu. At the time, speculation abounded in Israel’s media that Netanyahu planned to agree to a suspension of the legislative process for the reform plan and to call for talks with the opposition.

But Netanyahu held his own press conference Thursday night and, while again calling for talks, declared his government would continue the process of passing the judicial reforms in the Knesset, a process that continued in volatile committee meetings Sunday morning.

In his remarks, Netanyahu reiterated his reasons for the reforms which would greatly curtail the authority of Israel’s Attorney General to block government actions that he determines are not legal or undemocratic, and would also give the government a majority on the committee that selects new Supreme Court justices.

Today, current justices and representatives from the Israel Bar association hold a majority on that committee.

The reforms include a new law that would allow an absolute majority vote in the Knesset to override any Supreme Court ruling that nullifies a law or act of the government. This would, in effect, end judicial review in Israel and the opposition maintains that this would mean an end to democracy in the country. And this is why in the months since the reform plan was unveiled Israel has been rocked by massive protests that block highways.

Netanyahu, in his remarks, also listed what he maintains are examples of judicial overreach over the years.

“Without authority,” he said, “the court invalidated laws, prevented appointments and interfered in many areas that it need not have discussed at all.”

Netanyahu also charged that the current judicial appointments system is undemocratic because under the current system, judges have a veto on the appointment of judges and, “in effect, they appoint themselves, which does not occur in any other democracy in the world.”

“We do not want a controlled court,” he added. “We want a balanced court. A balanced court will be a court of the people and such a court will win the people’s confidence. This is not the end of democracy but the strengthening of democracy.”

The Prime Minister then went on to make a comparison between the way these things work in Israel and how they work in other nations. He used the system in America as proof of why his reform proposals are not undemocratic saying, “In all democracies, including in the US, it is the representatives of the people who select judges.”

But Mr. Netanyahu knows that Israel’s form of government is nothing like America’s. And this is why these comparisons are so problematic. A review of the American system actually disproves Netanyahu’s case.

In Israel, the government is the majority in the Knesset. In America, the presidency is separate from Congress, which is divided into two different bodies. Even when the President’s party is in the majority in both houses of Congress it is sometimes difficult for him to get the support needed to pass legislation.

And the U.S. Senate must confirm appointments to the federal judiciary.

Also, the U.S. Constitution requires a two-thirds super-majority in Congress to pass a constitutional amendment, which then must be ratified by three-quarters of the 50 states. Mr. Netanyahu intends to drastically alter the political system in Israel with a majority vote in the Knesset, albeit an absolute majority of 61 out of the 120 members.

As Prime Minister Netanyahu continually reminds the public in response to critics who say his plan is undemocratic, his side won the elections last year and so it has a majority in the Knesset. This, he says, is the definition of democracy.

But democracy is not just majority rule. Democracy is many other things too.

Majority rule applies to basic issues such as whether or not to raise or lower taxes and what should or should not be against the law. But a simple majority is not enough to enact dramatic changes to a nation’s system of government.

This is what the framers of the U.S. Constitution understood when they made it so difficult to amend it.

The main problem here is Israel’s lack of a formal Constitution. The Knesset can pass what are called basic laws with an absolute majority of 61 votes in the Knesset. But these laws can then be overturned by another absolute majority vote.

Israel has no Senate empowered to review laws passed by the Knesset.

Even in America, the constitution does not state or imply that the Supreme Court has judicial review power. The court there also asserted this power for itself. But, unlike in Israel, it knows its limitations and does not interfere with matters of public policy, nor does it attempt to preemptively block government actions on its own authority, unless there is a clear constitutional problem involved.

Even the opposition agrees with some of Netanyahu’s main criticisms of the current system, but it feels the proposed changes would create a democratically elected dictatorship, exactly what the framers of the U.S. Constitution feared would happen if they did not enact a system of checks and balances to block populism.

This all being said, the Left in Israel set a precedent for this type of action 30 years ago when the Oslo Accords were passed in the Knesset. The Oslo Accords were not just another law or treaty (and even in America a two-thirds majority in the Senate is required to ratify a treaty). The Accords fundamentally changed the identity of the State of Israel by declaring an intention to relinquish the areas of Judea and Samaria – the heart of ancient Israel – disavowing the country’s claim to these areas when it established the Palestinian Authority.

The Oslo Accords were ratified with just a 61-vote majority. At the time, the government of Prime Minister Yitzhak Rabin asserted that it won the elections and had the majority in the Knesset and that this was a democracy. And this is what Benjamin Netanyahu says today.

Then something even more extreme occurred in 1995. Yitzhak Rabin lost his majority in the Knesset when several members of his own party refused to vote in favor of the Oslo B agreement. So, in order to ensure a majority, Rabin and his coalition government changed a basic law midterm.

Because Knesset members had offered to vote against their own parties’ and even to leave them over the years in exchange for cabinet posts, a law was passed prohibiting any MK from doing so. The law said that without his party’s consent, an MK could not join a government or take any government position without first resigning his seat and then waiting six months. So without the MK’s vote in the Knesset, a governing coalition has no reason to make the person a minister.

For that reason, the Rabin government changed the law. The right-wing Tsomet Party, then in the opposition, had eight seats at the time. Three of these MKs agreed to join Rabin’s government. In order to acquire their votes in favor of Oslo B, the government passed a new law saying that if a minimum of one-third of the members of a party’s Knesset block voted to leave it they could form a new party faction and, therefore, be able to choose to join a government.

Why one-third of the members? Because three out of eight is more than one-third. And the law was enacted immediately, not only after the next Knesset elections.

At that time the Left, which is currently in the opposition, said the move may have been undemocratic, but it was necessary to promote the peace process.

And Israel’s Supreme Court did not vote to block the law’s passage, or even later overturn it.

So, is Netanyahu’s government right?

Perhaps this is a case where the doctors all agree as to the diagnosis, but vehemently disagree as to what course of action is needed to treat the patient.

President Herzog basically said as much the last time he addressed the Israeli public on the matter. Herzog said that 61 votes in the Knesset are not enough to alter Israel’s form of government. Such changes, he said, should only come with some sort of super-majority vote with a consensus that includes at least some support from the opposition.

Perhaps what Israel really needs is some sort of constitutional convention. The country has no constitution and the Knesset was established as it is to be a provisional government. But no consensus could ever be achieved on a better form of government and so the Knesset, with its system of proportional representations remained.

And the absence of a written constitution is part of the reason why the Supreme Court was able to increase its own authority over the years. Unlike in America, it must rely on its own judgment to determine what the government is or is not empowered to do and what laws passed are or are not democratic.