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Writer's pictureLaura Rodríguez
Apr 13, 20238 min read

Israel's judicial issue



In recent years, Israel has experienced unprecedented economic growth that has transformed the state. This transformation has led to Israel's transformation into a technological powerhouse. There are several protagonists in this change, but the figure of the current prime minister, Benjamin Netanyahu (or Bibi, as he is known in Israel), stands out.

This year, at the end of April, will mark the seventy-fifth anniversary of the creation of the state of Israel. However, since January, the Israeli executive, led by Netanyahu, has announced a controversial judicial reform. This change has led to the largest peaceful protests in Israel's history.


Apart from the domestic uproar, this judicial change has also been echoed in the international sphere with political and economic consequences. This article will shed some light on what this reform could mean and its impact.


To understand the rationale for judicial reform, one has to go back in time to understand the judicial system in Israel. The 1948 Declaration of Independence provided that Israel would elect a constituent assembly that would draft a constitution for the State of Israel that would guide the establishment and activities of the elected authorities.


Following its election, the constituent assembly (renamed the First Knesset), in December 1948, Israel published its draft constitution. However, the Israeli parliament, or Knesset, never adopted it into law.


On 13 June 1950, Israeli leaders decided that the constitution would be legislated 'chapter by chapter'. Instead of a constitution, Israel's parliament, the Knesset, adopted the Basic Laws.


These Basic Laws, currently 13, create sovereign authorities such as the Knesset, the government and the judiciary in addition to other basic laws concerning the president, the army and the state comptroller. In addition, many of these laws are based on individual freedoms that have been the essential constitutional foundations of the country.


According to the Harari Decision of June 1950, the Knesset holds legislative power, but has the power to draft or amend any of the Basic Laws. Between the establishment of the state and the early 1990s, the Knesset completed the enactment of almost all of Israel's basic institutional laws.


At the same time, since 1953, judges have been appointed by a committee composed of nine people from different constituencies (Knesset, Supreme Court, Government and Bar Association). Israel's Supreme Court has become a guarantor of legality. It is worth mentioning that the current Minister of National Security, Itamar Ben-Gvir, was convicted by this court for incitement to racism and supporting a terrorist organisation in 2007.


A key date in the judicial system in Israel would be 1995, due to the United Mizrahi Bank v. Migdal Cooperative Village ruling.


In Basic Law, Israel as a Nation-State of the Jewish People, there was a constitutional review of whether this basic law contradicted previous laws. This was the first time such a judicial action had been taken, as the Supreme Court took jurisdiction to oversee its constitutionality.


It should also be noted that this court is governed by the rationality principle. The court can revoke executive appointments if there is prima facie evidence of their legality.


During Ariel Sharon's government, a policy-maker, Benjamin Netanyahu (known as Bibi), became the Finance Minister (2003-2005) and is now Israel's prime minister. Netanyahu advocated an independent judiciary and a court capable of blocking politicians' most extreme legislation.


In addition, it initiated a culture of continuous reform to develop an environment in which private sector actors could thrive, in order to curb excessive bureaucracy and regulations. These policies would transform Israel into a technological powerhouse, explained in another article.


While Benjamin Netanyahu consolidated his political figure inside and outside Israel, several court cases have marked the country's political survival and political paralysis. These cases are known as: Case 1,000, Case 2,000, Case 3,000 and Case 4,000.


  • Case 1,000: Netanyahu was charged with fraud and breach of trust. It is alleged that he received several high-value benefits, such as pink champagne and cigars, in exchange for favours for a friend.

  • Case 2,000: These are also charges of fraud and breach of trust. According to the lawsuit, the prime minister made an agreement with the editor of a major newspaper to promote legislation to undermine a rival in exchange for favourable coverage.

  • Case 3,000: This scandal stems from the purchase of German submarines. Prime Minister Benjamin Netanyahu, who requested the purchase without consulting or notifying then Defence Minister Moshe Ya'alon and the then Chief of Staff of the Israeli Army.

  • Case 4,000: This is considered the most serious because Netanyahu was charged with bribery, as well as fraud and breach of trust. According to the indictment, Netanyahu promoted regulatory decisions that favoured a leading telecommunications company in exchange for favourable news coverage of one of its websites, as part of a deal with the company's controlling shareholder.

These legal problems would return to the forefront of politics. In November 2019, Israel's attorney general, Avichai Mandelblit, formally charged Prime Minister Benjamin Netanyahu with corruption in three separate cases involving bribery, fraud and breach of trust. Netanyahu claimed to be the victim of a "witch hunt" by his opponents and the media.


This judicial issue has not only hindered Netanyahu's survival, but is also a factor behind the call for five elections between 2019-2023. Netanyahu has exploited a loophole in Israeli law, where a prime minister has no legal barrier to his political survival.


Although the Supreme Court has previously ruled that a cabinet minister accused of a crime must resign or be removed from office. In 2021, Israel's police exonerated Netanyahu a month ago, however, in one of the biggest corruption cases in the country's history, Case 3000.


In the midst of this turmoil, the Supreme Court is perceived by ultra-nationalist and ultra-religious Jewish parties as a left-wing court that intervenes excessively in legislative and executive decisions to the point of putting minority rights before national interests. One might mention the Supreme Court's ruling against requirements of the surrogacy law that discriminatorily excluded some men.


Photo 1: Israel's Prime Minister Benjamin Netanyahu in December 2022 in the parliament, Knesset. Source: https://www.bbc.com/news/world-middle-east-64115141


In December 2022, Israeli Prime Minister Benjamin Netanyahu returned to the helm of Israel. However, Netanyahu, leader of the centre-right Likud party, formed a government coalition with ultra-nationalist and ultra-Orthodox Jewish parties.


Controversy erupted when Justice Minister Yariv Levin announced a new judicial reform. This reform has three key parts:

  • One, it modifies the nine-member judicial selection committee, which currently requires a consensus between the judicial and political branches to appoint judges to the Supreme Court and the rest of Israel. With the reform, the government would dominate this composition and would need only a simple majority to choose the justices.

  • The other two are aimed at reducing the Supreme Court's ability to review laws passed by parliament: on the one hand, the highest court would not be able to invalidate so-called "Basic Laws" which, in the absence of a constitution, function as fundamental norms; on the other hand, the Supreme Court could only challenge regular (other) laws if they contradict a right enshrined in one of the "Basic Laws" and with the support of 12 of the 15 justices - instead of the current simple majority.

With this reform, the Israeli executive wants to implement a "nullification clause". Under this clause, the Knesset would re-enact laws challenged by the court, provided it has the backing of at least 61 parliamentarians. Furthermore, under this reform the Supreme Court would not be able to disqualify government ministers - as is the case of ultra-religious leader Aryeh Deri, whose inclusion in the coalition was blocked by a court ruling because he has a conviction for financial crimes.


Within this reform, the right to equality is excluded, as well as other important rights such as freedom of religion and expression; an aspect that would affect Arab-Israeli citizens - who make up approximately 20 per cent of its population.


Finally, the government's legal advisors, who are attached to the ministry of justice and whose opinions are binding, would be chosen by the government itself, and their opinions would no longer carry legal weight.


This reform would give Parliament almost unlimited control over initiatives (and criticism), especially if, as is currently the case, the government of the day holds a parliamentary majority of 64 out of 120 seats. These proposals would allow the government of the day to impose its agenda, such as laws on military service, among other things, without checks and balances.


One example was Supreme Court President Esther Hayut, who defended the protection of minorities and the court's obligation to the rights of society as a whole. She also asserted that Netanyahu seeks to crush the judiciary and damage democracy.


This uncertainty has spilled over into the Israeli economy. In the technology sector, which accounts for 15% of the country's GDP, some firms and entrepreneurs have announced the withdrawal of funds from their accounts in Israel and are considering relocating their activities to other states. This uncertainty has also caused the local currency, the shekel, to fall. In February 2023, it depreciated by almost 6% against the US dollar, its lowest value in three years; while the benchmark TA-125 index of the Tel Aviv Stock Exchange retreated by 3.5%.


The Israeli president, a symbolic figure, in a speech on 12 February proposed a 'compromise' to moderate reform and offered to act as a mediator between the parties without much success.


At the same time, voices from the armed forces have added to the rejection. For example, 37 out of 40 reservist pilots from an elite air force squadron have stood down at a training session. Other ex-servicemen and volunteer soldiers are actively participating in the protests and have called on the government to stop its plans.


This growing domestic discontent prompted Netanyahu to dismiss defence minister Yoav Gallant on 26 March after he gave a televised speech calling for a halt to reform. His dismissal sparked massive protests across the country. However, Yoav Gallant remains in his post as defence minister.


After a day of utter chaos, with mass strikes and demonstrations that have brought the country to a standstill. Israeli Prime Minister Benjamin Netanyahu appeared to announce a freeze on his controversial judicial reform. This freeze is scheduled to last until 30 April, when the House will reconvene after the recess that begins on Sunday.


However, this decision was accompanied by Netanyahu's promise of the creation of a "national guard" under the command of Itamar Ben Gvir, and shows Benjamin Netanyahu's internal weakness in leading his executive.


This announcement has also highlighted the opposition's differences, despite the fact that most of these formations tend towards dialogue. Former Prime Minister Yair Lapid, leader of the country's second largest political force, the Yesh Atid (There is a Future) party, said he was willing to enter into negotiations with the government if President Isaac Herzog was present. The leader of the centrist National Unity Party, Benny Gantz, also welcomed Netanyahu's statement.


According to the Channel 12 poll, Benny Gantz's party, the National Unity Party, would take 23 seats in the Knesset, up from its current 12, thanks to the votes that would be abandoned by a Likud party in decline.


Despite Netanyahu's announcement, protests continue across Israel. Alongside this national concern, US President Joe Biden, a key ally of Israel, spoke to Israeli Prime Minister Benjamin Netanyahu on 19 March to express his "concern" over the judicial reform.


This reform is causing polarisation at home and could make the country less prosperous, more polarised internally and more vulnerable externally. The continuation of this reform puts Israel in an unprecedented context and shows how it may or may not extinguish a democratic period that is one of Israel's hallmarks.


Suggested readings:


  1. D.W. (no date) Más de 250.000 Protestan en Israel contra reforma judicial: DW: 08.04.2023, DW.COM. Available at: https://www.dw.com/es/m%C3%A1s-de-250000-protestan-en-israel-contra-reforma-judicial/a-65265107

  2. Proto, L. (2023) ¿En qué consiste la reforma judicial que ha puesto Israel patas arriba?, elconfidencial.com. El Confidencial. Available at: https://www.elconfidencial.com/mundo/2023-03-27/en-que-consiste-la-reforma-judicial-que-ha-puesto-a-israel-patas-arriba_3600447/









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