Photo Credit: Yossi Zamir, Shatil Stock
Last week, the Knesset passed a key component of its judicial overhaul package: a piece of legislation that enables the executive branch to subjugate the judiciary by altering the makeup of the judicial selection committee. The Association for Civil Rights in Israel (ACRI) immediately petitioned the Supreme Court, arguing that the legislation is unconstitutional and should be overturned.
Within the span of a week, Prime Minister Netanyahu and his allies passed this law, fired the chief of his internal security service (the Shin Bet), and began ousting the Attorney General. Israel’s system of checks and balances is weak to begin with, and these moves weaken it further. Israel does not have a formal written constitution that holds judges to certain fundamental principles. Israel does not have a federated system of government that diffuses the power of appointing judges (i.e. there are no ‘state’-level judges, they are all chosen at the governmental level). Israel does not have multiple houses of government that serve to distribute power and push back against the political appointment of judges by the executive. If a government controls a mere 61 of the 120 seats in the Knesset, it controls both the legislature and the executive. This law will give a bare majority (61) the power to select virtually every judge in Israel, essentially making the judiciary a branch of the executive.
Currently, the committee to select judges is made up of a balance between politicians and legal professionals, where the legal professionals hold a 1-seat majority. The new bill would replace two professionally appointed members with two lawyers selected by politicians, ensuring that at least one would vote with the coalition. This single seat transforms the committee from a professional and independent commission into a body that is entirely political.
ACRI filed its petition the same day the law passed. The petition explains that this legislation is ultimately counter to the work of the judicial system itself; it will ensure that only “loyal” judges—those who fall in line with the government’s agenda—are appointed to the bench. Instead of remaining independent and impartial, they will owe their careers to politicians. The law is further expected to harm core functions of the judiciary: protecting human rights and the rule of law. The ACRI petition stresses that this is a part of the judicial overhaul broadly and that it points to a rapid decline toward authoritarianism.
The ACRI petition reads: “The Supreme Court is the last and only barrier against majority tyranny. The politicization of judicial appointments will lead to a situation where every judge, from the lowest ranks to the Supreme Court, will depend on politicians’ favor for promotion and will fear ruling against government positions.”
ACRI’s petition is joined by two other petitions, one from the Movement for Quality Government in Israel and another from the Yesh Atid party.
When the law passed, NIF CEO Daniel Sokatch and Director of NIF in Israel Mickey Gitzen each put out a statement:
Daniel Sokatch: “By now we know how the autocratic populist machine operates: divide the people between the ‘people’ and the ‘elite’, crush state institutions, fire the democratic gatekeepers, appoint people based on their personal loyalty to the regime, and run a government based on petty corruption. In Israel, as in the U.S., this machine serves one man and his movement. This piece of legislation is a major stepping stone in this bleak direction. And so today, we are counting on, standing with, and supporting Israelis who are throwing sand in the gears of this machine, and standing up for the values we believe in: democracy, equality, and the institutions that protect them.
Mickey Gitzin: “We are at the moment in which Israel will be defined. This is not the time for business as usual. All of these things—the firings, the legislation—are being challenged in the Supreme Court. Yet this government is on record as saying it is prepared to defy those rulings. The moment the Court rules this legislation—or any other government decision to eliminate democratic gatekeepers—as unconstitutional or illegal and Netanyahu and his allies refuse to follow its ruling, the police, the Shin Bet, and even the army will need to decide who they obey. This not only brings massive chaos, it pushes us out of the State of Israel we know and into the State of Netanyahu. Will we continue to have independent institutions? We don’t know. In this constitutional crisis, something’s got to give.”