Israel’s Judicial Coup-in-Waiting

05th Apr 2023

Amir Levy/Getty Images

TEL AVIV – Within three months, Israeli Prime Minister Binyamin Netanyahu has managed to turn his best-ever electoral showing into Israel’s worst nightmare. Twelve consecutive weeks of growing protests have forced Netanyahu to pause his judicial revolution and call on opposition leaders to negotiate a compromise at President Isaac Herzog’s residence. But while the protests have staved off a constitutional crisis, Netanyahu’s decision amounts to a reprieve until the Knesset’s summer session begins, not a retreat.

Netanyahu’s coalition has persisted in advancing its plan to weaken the judiciary, despite escalating street protests and a growing stream of warnings from business leaders, economists, and tech entrepreneurs. Even foreign heads of state, including UK Prime Minister Rishi Sunak, German Chancellor Olaf Scholz, and French President Emmanuel Macron, have expressed concerns. In a rare public rebuke, US President Joe Biden warned Netanyahu that he “cannot continue down this road.”

Yet Netanyahu vowed to press ahead. By the end of the Knesset’s winter session in late March, the coalition was poised to pass two major amendments to the country’s Basic Laws that would have given the executive branch exorbitant powers. One amendment aimed to provide the coalition with complete control over the appointment of judges, including Supreme Court justices, removing the only check on the executive branch that exists within the Israeli system. The other measure would have abolished judicial review of Basic Laws, enabling the coalition to curtail civil and human rights with a simple majority.

At the same time, the coalition has rushed through more than 150 radical bills serving the interests of ultra-religious and far-right parties, as well as those of Netanyahu and his family. Most notably, the Knesset passed an amendment to a Basic Law that would make it almost impossible for lawmakers to declare a sitting prime minister unfit for office.

Officially, Netanyahu is barred from dealing with the judicial overhaul because it could affect his ongoing trial for bribery and corruption. In a landmark decision two years ago, the Israeli Supreme Court allowed Netanyahu to assume the role of prime minister after he declared he would refrain from any interference that might put him in a conflict of interest. Until the end of March, Netanyahu did refrain from intervening, although he clearly supported the far-reaching reforms sought by his ministers and coalition partners.

Immediately after the Knesset passed the bill preventing his removal, however, Netanyahu seemingly decided he was no longer bound by his earlier promise. In late March, his Minister of Defense, retired Major General Yoav Gallant, warned Netanyahu that the turmoil incited by the government was polarizing the traditionally apolitical Israel Defense Forces. A growing number of former high-ranking IDF officers and combat pilots declared that they would stop volunteering for active service, Gallant cautioned, jeopardizing national security.

Netanyahu convinced Gallant not to go public with his warning. Instead, the prime minister held a press conference and declared that he would “enter the event” and take charge of the overhaul (a move that his own attorney general later said was illegal).

The following week, after Gallant held his own press conference to call for the legislation to be paused, Netanyahu sacked him. An hour later, hundreds of thousands of Israelis took to the streets in the largest spontaneous protest the country has ever seen. Within a few hours, Israel’s major universities and colleges announced a strike. The largest labor union, the Histadrut, declared a general strike, shutting down the airports and seaports.

As the country spun out of control, Netanyahu and his coalition partners agreed to the pause Gallant sought. But National Security Minister Itamar Ben-Gvir, head of the far-right Otzma Yehudit (“Jewish Power”) party, conditioned his support for the delay on the creation of a “national guard” under his command. Ben-Gvir has repeatedly criticized the restraint shown toward the pro-democracy protesters and has pushed the police to use more force.

While Netanyahu bought himself some time, public trust in his leadership has dropped to a record low. For the first time in over a decade, Netanyahu finished second in polls asking, “Who is most qualified to be prime minister?” National Unity Party leader Benny Gantz, widely viewed as the “adult in the room,” was first.

In April, Israel will celebrate Passover and Independence Day, two holidays that usually bring Israelis together. But the past few weeks have torn the country apart. While politicians and legal experts are trying to work out a compromise, the opposition has good reasons to mistrust Netanyahu.

Although Netanyahu himself called for a timeout, he did not scale back or cancel the overhaul. In fact, the coalition has placed a loaded gun on the table by advancing the two most critical amendments to the point that it could enact them within 24 hours. Moreover, while Netanyahu has not confirmed Gallant’s dismissal with a formal letter, he has not reversed it either. By keeping his defense minister in limbo, Netanyahu may hope to keep internal opposition on a tight leash.

Meanwhile, Netanyahu’s extremist partners are unlikely to back away from the parts of the overhaul that would cripple the Supreme Court and give the executive branch unfettered power. The far right is already using the timeout to mobilize pro-coup supporters in preparation for the next round.

Israelis have learned from Poland’s democratic backsliding. When the Law and Justice Party tried to take over the Polish judiciary for the first time in 2017, it encountered public protests, and the overhaul was vetoed by President Andrzej Duda. But months later, after public opposition waned, it tried again and succeeded. The Israeli opposition suspects that Netanyahu’s timeout is a similar ruse meant to catch protesters off guard or, worse, to train a Ben-Gvir-directed militia that would forcefully crack down on future protests.

Netanyahu promised to pass the overhaul by the end of the Knesset’s summer session on July 30. Given the narrow window for negotiations and the rigid approach of the overhaul’s architects, this summer may be the hottest Israel has ever known.

Ido Baum, an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel, is Director of the Louis Brandeis Institute for Society, Economy, and Democracy and legal commentator for the daily newspaper TheMarker.