This is the second installment of a two-part feature. In Part 1, I have extensively described Israel’s governmental structure and the proposed reform. In Part 2, I will delve into the events that have taken place since the night of March 26, 2023:
Massive anti-overhaul protests have been ongoing for an extended period of time. A noteworthy aspect of these protests is the participation of military reserves, particularly those who play a crucial role in the air force pilot corps and several other units. These have declared their intention to refuse their voluntary duty.
On the evening of March 26th, Defense Minister Yoav Gallant issued a public statement calling for an immediate halt to the ongoing judicial overhaul in Israel and urged negotiations to begin. The minister stated that the overhaul had caused turmoil within the military due to the reservists’ protests and argued that the reform now poses a genuine threat to Israel’s national security. In the same statement, he called for an end to the reservists’ protests and urged to hold “a unifying process with broad participation, a process that will strengthen the State of Israel and the strength of the IDF”.
Netanyahu viewed this announcement as a disloyal act and announced the firing of Gallant the same evening. This decision has sparked public outrage in Israel, as many viewed it as an authoritarian move by the Prime Minister: Gallant, as the country’s Defense Minister, has decided to vocalize his concerns regarding the damage the reforms are causing in the country. His announcement also came after many warnings from a range of experts and officials in the military.
In Israel, the Prime Minister can fire ministers from the government, and such firing has already been done. One is violating the principle of collective responsibility– a minister can speak in objection to a governmental decision and even vote against it. Still, as soon as the decision has already been made in the government, the minister should stay loyal to it. The second one is other reasons, which could include fundamental disagreements with the Prime Minister’s Policy or because of a conflict with the Prime Minister that leads to a crisis of personal trust between them.
As per Netanyahu, Gallant’s announcement was disloyal and resulted in a loss of trust. However, many Israelis perceived this as an authoritarian act. Why is that so? Unlike ordinary disagreements, Gallant did not oppose the judicial system reform. Instead, he stated that the reform should not be implemented immediately and without a wide agreement, as there is fierce civil opposition and a rift caused among the people. He based his stance on his and other experts’ military opinion.
Additionally, he called for an end to the military reserves protests and for the start of negotiations, which are crucial in such a democratic crisis. Many Israelis consider this a responsible and expected expression of public opinion, while the dismissal is deemed authoritarian. Even those who do not object to the judicial reform believe that Netanyahu’s actions were dictatorial, which has joined the protests.
Following the night-time protests, on Monday, the 27th of March 2023, one of the most extensive strikes in recent history has taken place, causing the economy to come to a sudden standstill. The strike included the closure of universities, workers’ unions, hospitals, malls, and El Al, Israel’s national carrier. Outgoing flights were canceled at Ben Gurion International Airport, leading to the inconvenience of stranded travelers.
Throughout the day, Netanyahu had initially scheduled a national address for 10 AM, which was later postponed until 8 PM, while massive protests against the overhaul and a market strike occurred. Additionally, ministers from the government and coalition, including the prime minister, encouraged a “right-wing pro-reform” protest in Jerusalem. As the situation became more divisive, I held onto hope that Netanyahu’s speech at 8 PM would offer a reconciliatory tone to alleviate the growing rift in the nation. Unfortunately, my hopes were dashed as his speech failed to refrain from using polarizing language.
In his speech, Prime Minister Benjamin Netanyahu announced a temporary delay of his government’s judicial overhaul legislation, citing the need to reach a broad consensus before legislation in the next Knesset session, which will be on the 30th of April. He emphasized the importance of enacting a reform that would restore the balance between the authorities. While the speech addressed the need for a delay and a commitment to dialogue, it lacked the crucial element of leadership – the ability to reconcile the divisions in the nation.
Netanyahu began his speech with the biblical parable of the judgment of Solomon, where two women claimed to be the real mother of an infant, and each claimed that she was the real mother of the infant. King Solomon commanded that a sword be brought, and the baby be cut in half. One woman was prepared to rend the baby in two, while the other refused and insisted that the infant stay alive and whole. He compared the reform supporters to the real mother and the opponents to the fake mother, ready to cut the baby in half. He labeled them as an “extremist minority that is prepared to tear our country to pieces.” He accused them of using violence, incitement, threatening to harm elected officials, and stoking civil war.
During the speech, Netanyahu addressed the supporters of the reform and claimed that they had the Knesset majority to pass it alone, hinting that the stoppage of the judicial overhaul legislation was forced upon him due to the bad intentions of the protesting “anarchists”. However, polls conducted the same evening showed otherwise. The majority of the public (63%) favored stopping the legislation, and only a small minority (24%) wanted to continue. Among the voters of Likud, Netanyahu’s party, 60% favored stopping the reform, and only 29% favored continuing.
Netanyahu’s speech has been accused of utilizing populist incitement tactics, something he has already been accused of in the past for attacking the opponents of the reform by labeling them “anarchists”.
Despite the accusations and claims, 58% of the public supported a judicial reform that would be agreed upon through negotiations and comprehensive agreement. The public understands that this reform does not resolve any of the problems in the judicial system and instead gives immense power to the governmental branch.
Since then, the dialogue on the Israeli judicial system reform has commenced and will continue until the summer session of the Knesset in late April. During his speech on March 27th, Prime Minister Netanyahu promised that the reform would preserve and even strengthen individual rights. However, it is suspicious that there was no mention nor an attempt of the coalition to preserve and strengthen individual rights before the judicial overhaul. This leads to the question of whether this was just a promise to trust the coalition to strengthen individual rights after laws granting the unauthorized government power have already passed. Hopefully, this issue will be part of the ongoing dialogue, and comprehensive reform will be implemented.
To delay the legislation without risking his government’s downfall, Netanyahu needed the support of several ministers who opposed the delay, including Minister of National Security Itamar Ben-Gvir. In exchange for Ben-Gvir’s agreement, Netanyahu promised to authorize and establish Ben-Gvir’s proposal for a “national guard.” The National Guard would be a body within the National Security Ministry, operating independently from the police during emergencies, fighting terrorism, and asserting sovereignty “where necessary.” Ben-Gvir had campaigned on a promise to restore law and order. He praised the establishment of the National Guard, saying that it was a necessary and widely supported measure to ensure personal safety and return sovereignty to all of Israel. However, critics have pointed out that Ben-Gvir’s leadership of the body has led to concerns that it could become “Ben-Gvir’s militia” which could be used for both purposes of selective and discriminatory law enforcement and for stopping the anti-overhaul protests.
In addition to criticisms about the need for a new security body, Israel Police Inspector General Kobi Shabtai has suggested that the government should allocate funds to the police force instead to enhance its capabilities. Furthermore, the decision to place this new body under a minister’s management instead of being independent like the police force is questionable. Prime Minister Netanyahu addressed concerns about the national guard during a public address on April 10th, reassuring the public that it would not be a “private militia” of anyone and would be under the supervision of an existing security body. For the time being, the efficacy and operational details of this new body remain unclear, and it will be worthwhile to keep a close watch on its development as the government legislates its powers and responsibilities.
Based on recent polls, 58% of the Israeli population supports a judicial reform, but not necessarily this reform. The public voted in favor of a reform that results from careful and wide-ranging discussions, unlike the current reform that does not solve the problems and merely gives unchecked power to the government.
Indeed, reform is necessary as Israeli courts have increasingly filled a void left by politics since the 1980s. Notably, there were three critical changes in doctrine during this period: First, the emergence of sweeping judicial activism, where the High Court is considered more activist when it intervenes in the decisions of other government authorities. This was demonstrated through a significant expansion of the right to stand (allowing for general petitions, not just those concerning a specific person) and a greater emphasis on proportionality and reasonability. Second, a change in reasoning, where the courts’ consideration of value-based factors increased and formalistic considerations decreased in weight. Third, a shift in perception of the court’s role, where before the 1980s, the court was viewed as settling disputes between individuals and the authorities. However, these changes led to a new concept, where the court is seen as a political actor working alongside the Knesset, albeit in different ways.
However, the current reform fails to achieve a balance between the divisions of the country. Instead, it concentrates unchecked power in the hands of the legislative and governmental branches. Additional criticism touches upon the fact that while the core issues the reform discusses are crucial, numerous elements of the justice system that have a significantly greater impact on individuals’ daily lives. For instance, the burden on the judicial system, resulting in the protracted duration of trials that can span several years, and various aspects of evidence law that require examination. Unfortunately, discussions surrounding legal reform did not address these critical issues.
In the meantime, the public remains vigilant and continues to protest throughout the ongoing discussions to remind politicians that they are being closely watched. Hopefully, the negotiations will result in a real solution that can end this spiraling issue and finally result in a meaningful judicial reform for Israel.
Yael Iosilevich is a law student in the Buchmann Faculty of Law at Tel Aviv University and JURIST’s Staff Correspondent in Israel.