Analysis: Bibi reignites judicial reform fight

The battle over the Israeli government’s controversial judicial reforms looks set to resume after Benjamin Netanyahu vowed to press ahead with elements of the package, starting this week.

What happened

• On Monday, the government decided to resume pushing parts of its judicial reform plans this week. Legislation aimed at giving the government control of the Judicial Selection Committee – a centrepiece of the reforms – has reportedly been delayed until the autumn, although Netanyahu appeared to suggest on Sunday that it might be abandoned.
• The government lost a crucial Knesset vote last Wednesday on the composition of the committee, which is responsible for appointing judges.
• Following the vote, opposition leaders Yair Lapid and Benny Gantz suspended their participation in talks aimed at negotiating a compromise on the judicial reforms, accusing Netanyahu of going back on previous undertakings.
• The future of the judicial reforms appears to be creating deep divides within the government, as opinion polls confirm a sharp decline in Netanyahu’s approval ratings and a slide in the standing of his Likud party.

A reminder

Soon after taking office in January, the justice minister, Yariv Levin, outlined reforms to the relationship between the judiciary and the legislature. They would allow a simple Knesset majority vote to override High Court decisions annulling laws. The reforms would also strengthen the role of politicians in appointing judges and government legal advisers. The plans, which provoked thousands of Israelis onto the streets in weekly demonstrations, were suspended in late March after Netanyahu attempted to fire defence minister Yoav Gallant, who publicly declared the reforms threatened Israel’s national security. Netanyahu’s action – since rescinded – led employers and unions to call an unprecedented nationwide general strike. Talks between the opposition and government commenced, hosted by President Isaac Herzog.

Bibi’s about-turn: last week’s vote

The Israeli parliament last Wednesday staged a vote to pick two representatives on the Judicial Selection Committee.

• Ahead of the vote, Netanyahu had told Herzog, opposition leaders and the Biden administration that he would maintain the status quo regarding the formation of the committee. This would have seen two slots on the committee filled by a government and an opposition MK.
• But on the day of the vote, Levin and far-right ministers pushed Netanyahu to use the government’s majority to elect two of its own MKs to the committee. In response, the prime minister attempted to duck the issue: telling the coalition candidates to withdraw their candidacy and ordering government MKs to vote down the opposition candidate.
• In the secret ballot, Netanyahu’s plan appeared to backfire with the opposition candidate Karin Elharrar securing election with 58 votes to 56 votes. The vote indicated that at least four coalition MKs defied the prime minister and backed the opposition candidate. The coalition is now expected to elect one of its own MKs to fill the other Knesset spot on the committee. The committee itself can’t convene until the Knesset has picked its two representatives. Other slots are filled by the Israeli Bar Association, Supreme Court and government.
• After the vote, Lapid and Gantz announced they were suspending talks with the government. Accusing the prime minister of caving in to “extremists” in the coalition and lying to them and the president, Lapid said: “Netanyahu today prevented the establishment of the committee, and put an end to the pretense that he wants dialogue. The committee has not been established, the threat to democracy has not been removed. Netanyahu knew exactly what the consequences would be … Without the Judicial Selection Committee [convening] we will not go to the president’s residence. No committee – no dialogue.”

Judicial reform back on the cards

Netanyahu told Sunday’s cabinet meeting that legislation to give the government control of the Judicial Selection Committee would “not be advanced”. But that may simply be a tactical delay. On Monday, coalition sources indicated that these will be pursued in parliament’s winter session which begins in October.

However, the prime minister also said that two other elements of the reform package would be brought back to the Knesset “in accordance with the mandate we received to amend the legal system”. “Those two bills, while substantive, are much less far-reaching than other central elements of the coalition’s suspended overhaul package,” argued the Times of Israel’s legal affairs reporter, Jeremy Sharon.

The bills are:

• Legislation to limit the courts’ ability to strike down government appointments and decisions on the grounds of “reasonableness”. Earlier this year, the High Court blocked Shas leader Aryeh Deri’s appointment to the cabinet – deeming it “unreasonable in the extreme” – due to his previous criminal convictions and broken plea bargain pledges to quit the Knesset. The opposition is reported to have hinted it would accept curtailing the courts’ ability to use the “reasonableness” test with regards to government decisions and policy, but not appointments.
• A bill to reform the position of ministerial legal advisers, who are currently answerable to the Justice Ministry and attorney general. The government says the advisers, whose decisions are binding, too often stop ministers from pursuing the agenda they were elected upon. The coalition wants legal advisers to become political appointees and to free ministers from being constrained by their rulings. The opposition is said to be dead-set against these changes.

On Monday, ministers agreed that reforms to the “reasonableness” test would return to the Knesset on Wednesday. The government plans to push them through parliament before it begins its summer recess in six weeks. In response, Herzog urged all parties to return to talks and “continue the fruitful and substantive dialogue that took place in recent months”. However, the far-right finance minister, Bezalel Smotrich, branded the president a “leftist” and said he was not a neutral arbiter.

Splits in the coalition

Last week’s vote highlighted splits in the coalition, suggested commentator Sima Kadmon in the Yediot Ahronot newspaper: “There are currently two camps with conflicting interests within the coalition. Netanyahu is facing a growing power group whose interests are different from the prime minister’s and includes Yariv Levin, who until recently was his ally, and his coalition partners Smotrich and [Itamar] Ben Gvir.”

… and a fall in the polls

A poll conducted last week for Maariv showed Gantz leading Netanyahu by 10 points (47 percent to 37 percent) when voters were asked to pick their choice for prime minister. Gantz’s centre-right National Unity party was shown on 32 seats with Likud on 24. Overall, the current coalition would secure 50 seats and the opposition 59 seats, with two mainly Israeli-Arab parties – Hadash-Ta’al and the United Arab List – holding the balance of power with 11 seats.

What happens next

There were widespread protests against the judicial reforms on Saturday night and they are now set to grow. Attacking the coalition’s decision to resume pushing the judicial reforms, Gantz warned: “We’ve already been there, on the verge of the abyss, on the verge of civil war. I urge Netanyahu not to be the one who casts the lit match into the forest.”