PUERTA DE ORIENT Israel, the reform of Justice and the beginning of the end of the Third Temple

At least 80,000 people took to the streets to demonstrate against the law that Minister Levin and the Prime Minister want to apply. For lawyers, magistrates and critics it is a political “coup”. Supporters talk of a simple review to rebalance powers. In the background are the Netanyahu corruption and fraud trials. President Herzog’s difficult mediation attempt.

Milan () – A “regime change”. A political “coup”. A simple “reform”. And yet a plan that, if carried out, will transform Israel into a nation “without an independent judiciary” and with a government free to act “arbitrarily.” These are just some of the definitions associated with the justice reform anticipated by Prime Minister Benjamin Netanyahu and signed by Minister Yariv Levin, and it is among the priorities of the new executive who took office a few weeks ago.

A veritable shield of former magistrates, lawyers and representatives of the judiciary was raised against her, joined by a large part of civil society. Proof of this is the demonstration that took place last weekend and for which at least 80,000 citizens marched in different parts of the country. One of the many women who took to the streets in Tel Aviv, she said in a BBC interview that she was a second generation Holocaust survivor. “My parents,” she recalls, “emigrated from non-democratic regimes to live in a democracy. They came from a totalitarian regime to live in freedom. And to see it destroyed breaks your heart.” Along with other protesters, she concluded by saying that she feared “radical changes” with Netanyahu’s return to power, but that she did not believe they would come “so quickly.”

A controversial reform

The new justice reform plan has received the most varied names. Aharon Barak, an authoritative former chief justice who is certainly not used to dramatic tones, likened the bill to “the beginning of the end of the Third Temple.” A prophetic expression to describe nothing less than the extinction of Israel which, from being the only democracy in the Middle East – as it liked to call itself – runs the risk of becoming an “authoritarian democracy”. This is, at least, the best of scenarios according to former Attorney General Michael Ben-Yair, for whom a much worse evolution that would lead to the “dictatorship of a casual parliamentary majority” is not ruled out. A nightmare scenario characterized by the end of the independence of the judiciary, the increase in corruption, the grave of minority rights and the general loss of credibility of the country’s system, to the point of pushing opposition parties to a general mobilization to “save democracy”.

But what does the reform provide? According to the announcement of the Minister of Justice, Yariv Levin, first of all, a simple majority of the Knesset (Israeli Parliament) will have the power to annul the judgments of the Supreme Court. This would allow the government to pass laws without fear of being overturned by the supreme judges. Thus, politicians would have more influence in the appointment of judges, because the majority of the members of the selection committee would be direct emanations of the executive. In addition, it would be easier to legislate in favor of Jewish settlements and border posts in the West Bank, without possible rejection as happened in the past, when judges also acted as a shield against international criticism of expansionist policies. The complex and delicate system of checks and balances between powers is at risk, including the independence of the judiciary, which would be weaker than the executive. One such example is the proposed change to the commission that appoints judges: the ruling coalition currently has three seats in the nine-member commission. The new plan would give it a five, giving it a clear preponderance. Added to this is the suspicion that the reform could also serve as a shield for Prime Minister Netanyahu to protect himself from trials for corruption, fraud and obstruction of justice of which he is accused and in which he pleads innocent and victim of a conspiracy.

Then there is the loss of power of the Supreme Court itself to the Knesset. Today, supreme judges can reject laws made by the executive and approved by Parliament if they contradict the 13 basic rules of Israel (which should be the foundation of the future Constitution of a country that still lacks it) and which range from dignity human to civil rights. The reform project that Levin seeks includes an “annulment clause” that allows deputies to reintroduce a rule rejected by the Supreme Court with a majority of 61 (out of a total of 120). Despite criticism from magistrates, lawyers, judges and activist organizations that speak of a “frontal attack” on the judiciary, the government remains firm and Netanyahu himself defends the project: “We will complete the reform laws,” he said during a cabinet meeting, “to fix what needs to be fixed, protecting individual rights and restoring public confidence in the judiciary with long-demanded reform.”

polarized society

The issue of citizens’ trust in institutions, from the executive to the judicial power, is one of the elements around which the confrontation is polarized, and which will hardly be resolved with the mediation of the parties. A poll published in recent days (but conducted in October, before the vote) shows that 58% of Israelis are in favor of the Supreme Court’s right to overturn parliamentary rules if they conflict with democratic principles. However, a study entitled “Israeli Democracy Index”, which is already in its 20th edition, shows that trust in judges has fallen drastically to 42%, after having remained for years at 59.5%. Much lower is that of Parliament, which is 18.5%, with a slightly lower figure in the Arab community. In a country that is turning more and more to the right, especially among the youth, 85% of Israeli Jews trust the army (IDF), while only 8.5% believe in political parties. Optimism about the future decreases (49% compared to 76% in 2012) and the feeling of security plummets from 76% in 2020 to 38% in 2022, as does the feeling of belonging to the State and its problems.

Naomi Chazan, former Vice Speaker of the Knesset and Professor (Emeritus) of Political Science at the Hebrew University of Jerusalem attacks: “Today, everything points to the fact that the new government is doing everything possible – consciously and systematically – to equate the common good with what he wants”, starting with the “submission of the judiciary (and in particular the Supreme Court) to the opinions of the executive”. “The new government,” she continues, “believes it can repeat the mistakes of the past and ignore the experience of other regimes with different results. This is stupid, arrogant and wrong.” What is at stake, she concludes, “is the very fate of Israel.” The proposed changes have revealed in all their magnitude the polarization of society, divided between preserving liberal and democratic ideals or moving away from them. President Isaac Herzog, who normally plays a symbolic and guarantor role, intervened to try to bridge the gap between the parties by meeting with the various political leaders and stating that he was willing to work to avoid “a constitutional crisis of historic proportions.”

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