Netanyahu’s Judicial ‘Reform’ Goes Into Revolutionary High Gear (Hard Questions, Tough Answers- February 27, 2023)


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Q. The Knesset has begun passing laws that reduce the independence of the judicial branch of government. Assuming that all of Netanyahu and Levin’s proposals become law, what’s next? What sort of dynamic might we now see?

A. Last week two laws--one preventing the High Court from intervening in ministerial appointments and one transferring control over the Police Investigation Unit from the attorney general to the justice minister--were passed by the Knesset on preliminary reading.  This week will witness preliminary passage of a law prohibiting the attorney general from declaring a prime minister ‘disabled’ due to conflict of interest, and a law allowing the Knesset to override High Court decisions.

Mass popular protests, while escalating, have failed to stop or hinder this dynamic of politicization of the judicial branch. Prime Minister Netanyahu and his ministers are disregarding powerful warnings from the Israeli and global economic sectors, the high-tech engine of Israel’s economy, numerous security sector veterans, and activists from multiple sectors of Israeli life, regarding the damage that will be visited upon Israel by these measures and those to come. Capital flight has begun; Netanyahu says he is not impressed.

We have to acknowledge the likelihood that this right-religious Israeli government with its 64 (out of 120) members of Knesset will prove stable and determined enough to pass more and more laws that radically reduce the independence of Israel’s judicial system. Netanyahu is not only shunning compromise--he is inciting against the protesters who (according to consistent polls) represent most Israelis. Last week he talked about needing “a fist” to deal with them.

Q. Well, maybe the Bedouin saying “The dogs bark and the caravan passes” will prevail. The laws will pass, the protesters will get tired, and Israel will settle in to a Hungary-model illiberal democracy.

A. This is certainly possible. It is clearly what the coalition’s leaders, from Netanyahu to Justice Minister Yariv Levin and Chairman Simcha Rotman of the Knesset Constitution, Law and Justice Committee, hope will happen. They just have to remain focused and determined and outlast the protesters, who will in any case not feel the effect of many of these laws for months and possibly years and will become increasingly dispirited and indifferent.

By the conclusion of the Knesset’s winter session in early April, coalition leaders hope to pass at least the more urgent (in their eyes) laws on a third and final reading. Those who continue to demonstrate and object will be told by Netanyahu and Levin, “We are ready to discuss changes and compromise. But without preconditions. We will continue legislating regardless of talks”. The protest movement insists the legislative dynamic be frozen while talks regarding compromise measures take place.

Q. Yet if these laws have not (yet) neutralized the High Court, won’t the Court disqualify a lot of them, deeming them in conflict with Basic Laws regarding separation of powers, human rights and judicial oversight?

A. The minute these laws are passed by the Knesset on a third and final reading, they will be appealed to the High Court, which is indeed likely to disallow at least some of them. This could plunge the country into a crisis situation: the coalition will refuse to recognize the High Court’s decisions, but a major portion of the public, which opposes the laws, will recognize those decisions. Under relevant circumstances, who will the IDF chief of staff take orders from? The chief of Israel Police? The attorney general?

Suppose, for example, the Knesset passes its planned override law, whereby any High Court decision can be cancelled by a simple 61-member of Knesset majority. On appeal, the High Court disallows this law. A Knesset majority overrides the High Court. The High Court disallows that vote. Netanyahu moves to dismiss Attorney General Baharav-Miara, who courageously refuses to represent the government before the High Court but who, like the justices, is an appointed official who does not represent ‘the people’. The High Court nullifies her dismissal. Who is in charge?

Essentially, in whatever configuration emerges, this means constitutional crisis.

Q. Still, assuming the coalition and its laws survive this sort of scenario, what would the coalition’s next targets be?

A. How about Israel’s free press, which is perceived by Netanyahu and his right-religious allies as a leading enemy of their plans. Minister of Communications (Likud) Shlomo Karhi has already declared his objective of silencing or weakening the public broadcasting network (TV Channel 11, the Kan radio stations). Last week the Knesset’s Economy Committee approved provisions worth millions of shekels for Channel 14, a “private” right-religious propaganda station.

Certainly, the Orthodox and ultra-Orthodox in this government have plans to take advantage of its 64-MK majority to pass laws ‘Judaizing’ Israeli life: restrictions on Sabbath activities and on the sale of non-Kosher food, introducing nationalist-religious teachings into the secular school system, etc. Perhaps changes to the electoral system could come next, to make sure the public does not run this coalition out of office. Perhaps annexation of half the West Bank will come next. Perhaps limitations on academic freedom.

All these and more are on the agenda of at least some components of this coalition. And Netanyahu, we recall, needs the cooperation of all the component parties to legislate his way out of his corruption trial.

Q. Let’s assume the popular protest not only does not die down but, as its organizers plan, escalates into mass strikes, civil disobedience, even refusal to serve in IDF reserves or to enter the military. How might Netanyahu react?

A. The protest organizers are counting on the prime minister’s hesitation to react forcefully by, say, sending the police to arrest draft-dodgers. They are counting on the Israel Police to remain autonomous.

Further, they are hoping that four or more of the more moderate and secular Likud ministers and members of Knesset will refuse to continue voting with the coalition, thereby thwarting legislative initiatives and possibly enabling a vote of no-confidence to bring down the government and either replace it or move to new elections. They hope Biden administration pressure and/or economic setbacks provoked by Netanyahu’s policies will force him to compromise or halt anti-judicial legislation.

The protest movement hopes that the coalition will agree to freeze legislation and institute negotiations over compromise legislation, as President Herzog has advocated and many opposition politicians agree. This is a realistic scenario for nearly everyone but Netanyahu himself and his most extreme henchmen, led by Levin and Rotman.

Conceivably, Netanyahu could also institute negotiations with the attorney general regarding a plea deal that would end his corruption trial. But if Netanyahu insists on remaining in office under the deal, this too is a doubtful scenario.

Q. So, assuming none of these ‘hopes’ causes Netanyahu to compromise . . .

A. Here we confront ominous ‘war’ scenarios, according to which a beleaguered Netanyahu who is losing in his corruption trial, losing popularity and losing control over his libertarian-reactionary judicial ‘reformers’, launches an Israeli military initiative. This places the country on a conflict footing and enables the prime minister to rally the public, or at least a good part of it, around the flag and away from mass protests.

Alternatively, a war situation could conceivably allow Netanyahu to freeze his government’s judicial ‘reform’ initiative without losing face. But only if he could persuade his extremist coalition partners to back off.

Two fairly obvious conflict scenarios suggest themselves. The more likely one is a military operation inside the West Bank to suppress what would be labeled a full-fledged intifada. The current state of affairs is not far from this scenario, but the IDF and Israel Police are adamant that their present tactic of low-profile incursions into the West Bank, based on pinpoint intelligence, is more effective. Yet a prime ministerial decision, backed by the defense minister and national security minister, would be obeyed by the armed forces.

Sunday’s West Bank terrorist attack killing two settlers, followed by a vicious settler-militia pogrom against Palestinian civilians--with the IDF seemingly powerless to intervene--points in this direction. On the other hand, Sunday also witnessed a rare meeting in Aqaba, Jordan, between Israeli and Palestinian security personnel, chaperoned by American, Egyptian and Jordanian officials. They reportedly agreed on measures to reduce Israeli-Palestinian tensions and, with Ramadan approaching, avoid precisely such an intifada conflict scenario. Lest we forget, Netanyahu is notoriously reluctant to get mixed up in armed conflict with the Palestinians.

A second, less likely and far more dangerous scenario would involve an Israeli military escalation against nuclear targets in Iran. The IDF, backed by Netanyahu, is reportedly readying contingency plans for this. But such an Israeli initiative would almost certainly require close coordination with the United States, where the Biden administration is taking a tough attitude toward Iran’s military and nuclear plans but also a critical approach to Netanyahu and his judicial ‘reform’ initiative.

A decade ago the entire security establishment reportedly refused to go along with a Netanyahu proposal to attack Iran. That could happen again.

Q. Do you have any reassuring possible outcomes?

A. Here are two.

First, the public protests are not dying out. More and more Israelis are protesting, including some Likud supporters, some Orthodox and even some settlers. And the protests themselves are becoming increasingly radical. If this dynamic continues to grow, something in the coalition will conceivably give, and the government will either back down or fall.

Second, let’s think back to the United States in the 1950s. At the height of the McCarthy witch hunt era, many appalled Americans simply hunkered down until brave people spoke out, the insanity withered, and Congress came to its senses. Could something similar happen now in Israel?

Q. Bottom line?

A. One way or another, Israel is increasingly in what must be deemed by intelligence analysts a ‘revolutionary situation’, in which it is virtually impossible to predict the outcome. Lest I be misunderstood: Other than the ‘judicial revolution’ there is no revolution here, only a revolutionary situation, which is different.

In a revolutionary situation, we are looking at too many unfamiliar or unpredictable actors to be able to do more than describe the current situation with its many unknowns. We cannot make reliable predictions. In the Israeli case the unknowns are obviously Netanyahu and his highly influential wife and son Yair, but also the masses of anti-government demonstrators, some threatening extreme measures. Then there are the High Court justices, the Likud’s (relative) moderates, the West Bank Palestinians and the settler militias. Any one of these actors could tip the current highly volatile balance.

Meanwhile, all we can do is speculate, hopefully intelligently.