By Our Correspondent
NEW DELHI—Israel has been plunged into a major crisis following the passage of the Judicial Reforms Bill, against which thousands of people have staged protests all over the country in order to oppose the move to curtail the powers of the Supreme Court. The new law will limit the powers of the apex court with the abolition of the “reasonable doctrine”, which the court has often used to assess key government decisions and ministerial appointments.
The most dangerous aspect of the judicial overhaul plan is that it will make it easier for the Israeli government to take the measures which will serve its far-right agenda. The legislation will encourage the government to adopt the policies which subjugate Palestinians and facilitate more Jewish settlements in the occupied Palestinian territories.
Since Israel does not have a written Constitution, the courts cannot examine the government decisions constitutionally. The reasonability doctrine has worked as a critical judicial check on executive decisions. The court could determine whether a government decision or a ministerial appointment is sensible and fair and nullify it if needed. Reasonableness is a legal standard used by the highest courts in several countries, including India.
The controversial law will take away the Israeli Supreme Court’s ability to review the government’s decisions on the ground of their unreasonableness. The Bill was passed in Israeli Parliament, the Knesset, last week with the support of the right-wing Prime Minister Benjamin Netanyahu’s 64 coalition lawmakers against zero. During the process of Netanyahu’s legislative victory, the Opposition boycotted the vote and thousands of people protested outside the Knesset.
The ruling coalition of right-wing and ultra-orthodox parties has claimed that the legislation will bring a balance between the government and the judiciary. Israel’s governance system has continuously shifted to the right, putting the governments at odds with the judiciary. Netanyahu’s allies probably want to fix this contradiction through the judicial overhaul.
Bringing the judiciary, which is the only powerful constitutional check on the government, under the government control may cause the existing institutional balance in Israel to deteriorate, especially when far-right parties are on the ascent. This fear has triggered the protests all over the country, mainly by the workers, professionals and military reservists, who have accused Netanyahu of trying to undermine democracy.
Curtailing the powers of the Supreme Court is the most effective method for speeding up Israel’s transformation and the subjugation of the Palestinians. Ministers such as Itamar Ben-Gvir and Bezalel Smotrich want more Jewish settlements in the occupied Palestinian territories and a crackdown on the Arab minority of the Jewish state. With the new legislation in place, the government’s actions cannot be nullified by the Supreme Court on the ground that they were “unreasonable”.
After his victory in the 2022 elections, Netanyahu formed a coalition with several far-right parties which have a long history of using incendiary rhetoric against Palestinians, opposing Palestinian statehood and supporting the extension of Israeli control over West Bank. Israel occupied West Bank after the 1967 Middle East war and has since pursued a programme of expanding illegal and Jewish-only settlements in the territory.
Observers feel that the Israeli government’s policies in the occupied West Bank could cause a security escalation there. Last year was the worst for Palestinians in West Bank since the United Nations began keeping track of fatalities in 2005, with 150 people killed, including 33 minors. The current year, 2023, may even witness a higher number of fatalities.
Ahmad Tibi, a Palestinian member of the Knesset, said that the law would weaken and eliminate any form of supervision that the Supreme Court had over the decisions of the government. This is especially the case when it comes to decisions which have to do with official appointments and other major decisions. These appointments are for senior positions in the police, army, financial institutions and other government bodies.
Moreover, such appointments directly affect Palestinian citizens of Israel. The officers in police department may pursue the vision of the far-right government, while the Palestinians will not be able to challenge these appointments legally and administratively. The present and the upcoming governments will be able to implement their policies promoting hegemony over Palestinians with more power and vengeance.
However, Israeli Supreme Court has never been liberal and has never served Palestinians in any manner. The top court has only supported the far-right policies of the governments in the past. In 2021, the Supreme Court upheld a controversial law which defined Israel as the nation-state of the Jewish people, rejecting claims that the law discriminates against minorities. The Bill downgraded the status of Palestinians and the Arabic language. The Supreme Court has also allowed Israeli authorities to continue placing Palestinians in administrative detention, a practice of holding them on secret evidence, without charge or trial.
The protests have taken place with Israel’s Opposition and civil society groups accusing the government of trying to undermine the country’s democracy from within. There are bigger questions at stake, such as the country’s identity and tensions between liberal and orthodox Jews. As the only institutional check on the government so far was the judicial system, the observers fear that if this system is undermined, it will make the government very powerful and turn the country into an authoritarian theocracy.
Though the protests started from the liberal sections of society, it soon spread to different groups, including military reservists, who feel that the ultra-orthodox Jews refusing to serve in the military will try to undermine the courts and hand more powers to religious parties and sections. But despite mounting pressure, Netanyahu’s coalition has stood together, as it wants the smaller religious and far-right parties to stay in power. Similarly, the orthodox and extreme right parties want Netanyahu to push their agenda.
Civil society groups have filed petitions in the Supreme Court asking it to strike down the legislation on the reasonability clause. The court has said that it would review the challenges and asked the defendants to submit a response at least 10 days before the preliminary hearing. The Supreme Court has the power to review Knesset laws, but here the contradiction is that the law is on the Supreme Court’s powers. The judges will review a law passed in the Parliament which curtails their own powers.
This may lead to a constitutional showdown in Israel. The far-right wants to give military service exemption to religious Jews and expand settlements in West Bank, irrespective of the protests and resistance from the Opposition. These developments will give credence to the belief that Israel has two systems for its citizens and those living in the occupied and annexed regions, the West Bank and East Jerusalem.
Significantly, the judicial overhaul’s greatest supporters are also the greatest defenders of the occupation of Palestinian territories. The far-right wants to turn Israel into an authoritarian theocracy, with few checks and balances at home, and unbridled expansion into the occupied land. The passage of the Bill in the Knesset has exposed Israel’s fault lines and rendered the Jewish country weaker.
