Israel’s political and constitutional crisis

David Kretzmer

Hebrew University of Jerusalem

As Benjamin Netanyahu lays the ground for his new coalition government that shall probably be presented to the Knesset in the coming week a series of laws is being considered in the Knesset (Israel’s parliament) that present a clear and present danger to the democratic institutions of the state.  In order to understand the destructive potential of the proposed laws it is necessary to appreciate the country’s fragile constitutional structure.

Israel’s Constitution

While Israel’s Declaration of Independence declared that the new state would have a formal constitution, a political decision was made not to draw up the constitution at once, but to adopt a series of basic laws that would eventually form the country’s constitution. Basic laws dealing with the branches of government were enacted, but most of these laws were not entrenched, and can be amended by a simple parliamentary majority.  Furthermore, the Supreme Court originally held that the basic laws did not have superior normative status to regular legislation. After the enactment in 1992 of two basic laws dealing with human rights the Supreme Court changed course.  In 1995 the Court held that all basic laws have constitutional status, that parliamentary legislation is subject to judicial review, and that the Court may strike down such legislation if it is incompatible with the basic laws. In the 27 years that have passed since then the Court has struck down provisions in 22 laws, while upholding the constitutionality of dozens of laws that have been challenged before it.

Political background

In the November 2022 elections the right-wing and religious parties’ bloc, headed by Netanyahu’s Likud party, achieved a majority of 64 members in the 120-member Knesset.  Even though Netanyahu is on trial before the district court in Jerusalem on corruption charges, he was given the mandate to form a new government.  This involved reaching agreements with the smaller parties in the bloc.  Part of the demands of those parties were that some pieces of legislation be enacted before the new government is presented to the Knesset.  

The assumption of the present, newly elected, majority in the Knesset that was sworn in on November 15 is simple: since they have a parliamentary majority, they can do whatever they like. The laws being considered at the moment aim to remove any obstacles that may prevent them from doing exactly that.

Override clause 

It is indeed fairly clear that some of the proposals that have been aired by parties in the coalition bloc, such as legislation that would put a stop to Netanyahu’s criminal trial, would not stand up to judicial review.  The proposed “solution” to this obstacle is to introduce an override clause into Israel’s basic laws. Such a clause would enable a simple Knesset majority to introduce a provision in a law that has been struck down by the Court, or even a law that may be struck down by the Court, according to which the said law would be valid notwithstanding the provisions of the basic laws, or the judgment of the Court. In a parliamentary system, in which coalition discipline means that the executive branch has effective control over the Knesset, such an override clause would spell the end to constitutional and judicial protection of human rights in the country, and would also allow corrupt politicians to continue to wield political power.  With the present populist majority in the Knesset, it is hard to believe that there will be other constraints on the use of unbridled governmental power.  

Threats to the independence of the Court

Because of the Court’s power of judicial review over legislation, some decisions affecting the ultra-orthodox community, interference in governmental decisions that violate human rights of unpopular minorities (such as asylum seekers and Palestinian land owners in the West Bank), and the misconceived perception that it prevents the government from ruling, the Supreme Court has become a controversial institution that is detested by members of the present coalition parties. 

I am the last person to say that the Court is beyond reproach. Nevertheless, however critical one may be of some of the Court’s decisions, one cannot deny that the Court has proved itself to be a fairly solid institution. In the 74 years of its existence the Court has promoted protection of fundamental rights, such freedom of expression, gender equality, and personal liberty, and has provided individuals with a remedy against arbitrary governmental decisions. It has also attempted to curb government corruption.

Besides the override clause, which clearly affects judicial independence, another proposal relates to changes in the way judges are appointed. Under the present system all judges are selected by a committee of nine composed of four politicians, three Supreme Court justices and two members of the Bar Association. In order to be appointed a judge of the Supreme Court, a candidate must obtain the support of at least seven of the nine members. Thus consensus must be achieved between the political and professional members of the committee. The proposal is either to adopt a purely political process for the selection of Supreme Court judges, to increase the number of the political members of the committee, or to subject candidates to a parliamentary hearing and parliamentary approval.  

The man slated to become minister of justice in the new government has also proposed lowering the mandatory retirement age of judges from 70 to 67, with immediate application.  If adopted, this proposal would amount to removal from their posts of the Chief Justice and two other justices of the Supreme Court who are regarded as among the more liberal judges on the Court.  This is, of course, the tactic used in Hungary and Poland to get rid of “inconvenient” judges. The courts of the European Union ruled that this tactic was incompatible with European law (here and here).  In Israel there are no external judicial constraints on legislation.  

Changes in control over the settlers in the occupied West Bank

At the present time the occupied West Bank is, at least in theory, under the control of the military commander. Under a military order promulgated in 1981 a Civil Administration, headed by an army officer subject to the military commander, is in charge of civilian affairs (as opposed to military and security matters) both of Palestinians and Israeli settlers. Under an agreement signed between a right-wing religious party and the Likud, the leader of the former party will be appointed as a minister in the ministry of defence. Rather than the minister of defence himself, who has control on behalf of the government over the military, this minister will have control over the Civil Administration.  This proposal exposes the policy of the government in the West Bank, whereby the military regime applies to Palestinians, but not to the Israeli settlers who receive preferential treatment. Does one hear the word “apartheid” mentioned?  

Control over the police

Under the existing law the Israel police enjoy a large degree of independence from political interference in their decisions, including those on investigations, prosecutions and policing of demonstrations. The minister of internal security has a supervisory role, but cannot interfere in operational decisions. One of the more preposterous appointments in the new government is that of the head of a racist party as the new minister of national security. This individual was convicted in the past of incitement to racism, and has been charged with numerous crimes over the years.  One of his demands for joining the new government was amendment of the Police Law, so as to give the minister control over police policy and priorities. The proposed amendment is now being considered in the Knesset. If adopted the amendment would enable the minister, for instance, to direct the police to give low preference to the investigation of charges of corruption by politicians, not to enforce the law against certain sections of the population (such as settlers in the West Bank) and to disallow demonstrations by anti-government groups.

Undermining the independence of legal advisers

The final proposal that I shall mention exposes the fact that what really bothers the parties of the incoming coalition is not judicial review; it is rather the very idea that there are legal limits on their powers.  Under the present system the Attorney General of the state enjoys professional independence, and in each government ministry there are professional lawyers, who are appointed by professional bodies and are subject to the Attorney General. This is supposed to guarantee that the ministries will act within the constraints of the law. The present proposal is to turn the legal advisers into appointees of the minister, who can appoint and dismiss them at will.  No sophisticated analysis is required to show what this will mean for the rule of law. 

In conclusion

Each of the above proposals obviously threatens the democratic institutions of Israel that were built up over the last 74 years.  When taken together they shake the very foundations of the state. 

David Kretzmer is Emeritus Professor of Law at the Hebrew University of Jerusalem.  

Suggested citation: David Kretzmer, ‘Israel’s political and constitutional crisis’ IACL-AIDC Blog (23 December 2022) https://blog-iacl-aidc.org/new-blog-3/2022/12/23/israels-political-and-constitutional-crisis.