Legal eruptions in Israel … Spurious justification for usurping the authority of the Supreme Court … Judicial review rendered useless … Bibi’s “home free” card … Neutering the constitution … New mechanism for politicised judicial appointments … Black Robes on the barricades … Max Shanahan reports  

Massive protests have engulfed parts of the country, with the legal profession at the centre of resistance efforts. Law firms have given staff time off to attend protests, while partners at corporate firms have assumed the unlikely role of activist leaders, with members of the judiciary shedding their traditional reticence to come out forcefully against the changes. 

Long a target for the Israeli right, the ultra-conservative coalition government formed under Netanyahu last year has given new impetus to longstanding efforts to restrict the power of the Supreme Court. 

Associate Professor Adam Shinar from Reichman University told Justinian that “the basic claim is that the Supreme Court has, over time, gradually usurped the power of the executive and the parliament and increased its own power to strike down legislation and expand standing requirements”. 

The government claims that the quasi-constitutional Basic Laws that were passed in the 1990s and which enshrine certain rights, have imbued the Supreme Court with powers it was not originally intended to hold. 

Right-wing politicians accuse the Supreme Court of being “exceedingly interventionist” in national security cases, and that it too frequently rejects legislation held to infringe the Basic Laws. 

Shinar describes this characterisation as “not true” and “overstated”, writing in Foreign Affairs: 

“In fact, the court has been quite deferential to the state … the court has authorised almost every policy related to settlements while providing a veneer of international legitimacy. For Netanyahu’s new government, however, this is not enough.”

The proposed changes focus on raising the bar for overturning legislation and controlling appointments. The Supreme Court will only be able to strike down laws as unconstitutional if all 15 judges consider the matter, and 12 of them agree. 

This limitations on the ability to deem laws unconstitutional is further compounded by the extraordinary proposal to grant the Knesset an “override clause”, which would permit the legislature to overturn a Supreme Court finding of unconstitutionality and reinstate the impugned law by a simple majority. 

Such a provision effectively renders judicial review useless, with any governing coalition able to legislate outside constitutional boundaries at will without the oversight of the courts. 

In addition, to bypass the possibility of the court even making a redundant ruling striking a down law, the Supreme Court will be stripped of any power to strike down a “Basic Law”. 

There would be no limitation on the Knesset to “self-deem” any law as a Basic Law. This amounts to a stranglehold on the judiciary by the government and the legislature – so much so that even the corruption case against the prime minister has the potential to be invalidated. 

The proposals extend to overhauling the body responsible for judicial appointments – opening the path for overtly political appointments to the Supreme Court. 

As it stands, a nine-member committee comprised of representatives from the legislature, executive, bench and bar association are required to form a consensus as to the appointment of judicial candidates. 

This system has led generally to the appointment of centrist judges, with Netanyahu and his allies long arguing that the committee freezes out conservative appointments. 

The proposal seeks to change the composition of the committee so that the government holds a permanent majority, allowing unobstructed appointment of “government judges”.

The response from legal officials has been strong. Attorney-General Gali Baharav-Miara – appointed under the previous government – penned a legal opinion arguing that “adopting the proposed arrangement would lead to a governmental regime in which the executive and legislative branches would have broad and in practice unlimited power”. 

She told the Justice Minister Yariv Levin that the laws, if adopted, would “fundamentally change the democratic nature of the state’s governance”.

The Chief Justice of the Supreme Court, Esther Hayut gave an impassioned speech in which she described the government’s agenda as “a plan to crush the justice system, designed to deal a fatal blow to the independence of the judiciary and silence it”. 

Hayut warned that the justice system envisaged by Netanyahu and his coalition allies would “change the democratic identity of the country beyond recognition”. 

Reaction to the government’s plans hasn’t been confined to official channels. Vast protests have rolled through Tel Aviv and other major cities since the new year. 

In Tel Aviv, crowds in excess of 100,000 people, concerned about the erosion of democracy in the country, have regularly marched against the new laws. 

Lawyers and law firms have taken an active part in organisation, encouraging attendance at large rallies and staging their own protests outside courts and government buildings. 

Law firms have allowed staff to attend protests without docking pay, while senior lawyers have taken an unusually activist role. The “Black Robes” protest group, made up of lawyers from private firms, has been one the leading campaigners against the mooted changes. 

Led by law firm partners and commercial litigators Zvika Bar-Nathan and Nadav Weisman, the Black Robes have approached their task carefully, shying away from seeking to engage judges in protests, for fear of professional conflicts, calling for nothing more than “proper process”, replete with public committees and expert advice on any judicial reform. 

“We’re lawyers, not protest organisers,” Weisman told the Jerusalem Post. Bar-Nathan added: 

“We believe as lawyers, because of our work in the field, we have a responsibility to protect the rule of law and democracy – a responsibility shared with everyone in the public.” 

All elements of the legal profession have shown a united front in their opposition to the changes, with the private lawyers of the Black Robes supporting government lawyers’ threats to strike.  

Likewise, the academy has been active in the protest movement, organising various open letters and organisations – such as the Law Professors Forum for Democracy – to campaign against the government’s plans. 

The cynical might argue that private firms support the protests because of the threat to business from damage to the Israeli legal system, nevertheless it is significant and unusual to view the mobilisation of lawyers in such open activism. And it’s not a case of protesting about fees – as we saw in the UK with the strike by criminal defence barristers over legal aid payments. 

While protests continue and escalate into disruptive action with the government showing no signs of backing down, lawyers from all corners of the legal system will continue to lead efforts to counter what they view as an existential threat to the foundations of their profession, and the country’s democracy.