“I think Yariv made a big mistake, taking on the legal establishment like this,” said a confidant and unofficial adviser of the justice minister this week. “Rolling out so many massive legal reforms in one go is simply opening a war which he can’t win.”
To help those less informed on the passions aroused by justice minister Yariv Levin’s plan, unveiled last Thursday evening, I’ll add that the legal expert quoted here insisted on anonymity, though he is usually happy to opine publicly.
This isn’t a moment when Israeli legal eagles want to be known for their friendships with Mr Levin.
The justice minister’s plan has become the main battleground over which the new Netanyahu government is going to fight not only the opposition in the Knesset but the legal establishment, the civil service and quite likely many thousands taking to the streets.
The outcome of this battle could decide the fate of the government.
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Yariv Levin (Photo: Flash 90)
The plan includes: an “override clause” allowing the Knesset to pass legislation that the Supreme Court has ruled unconstitutional; changing the makeup of the Judicial Appointments Committee, which appoints the Supreme Court judges, so that politicians have a majority on it; and making the legal advisers of the government departments political appointees, answerable to their ministers rather than civil servants appointed by the Attorney-General as they are today.
Another detail of the plan is to cancel the ”reasonability argument” that has been used in the past by the Supreme Court to disqualify government decisions.
Can it pass?
Members of the coalition are convinced that with their current majority, and by pushing the first elements of it through the Knesset Justice Committee and holding votes in the current session, they can win.
The first committee meeting was held on Wednesday morning. Legal experts on the other hand (by that I mean those who have been following the tense dealings between the Knesset, government and judiciary for decades) believe that, just as in the past, the legal establishment will brazen out the politicians.
One professor of constitutional law who is not entirely unsympathetic to the calls for reform also criticised Mr Levin’s tactics.
“The court is not as monolithic as he’s trying to make it seem. On many issues, such as the government’s powers in the West Bank, it has been far from liberal. If anything, they’ve given the security forces near carte blanche,” he said.
“Some of the changes could certainly have been implemented by working quietly with the judges.
But instead Levin has powered ahead without any consultation and that’s made it much easier for the opposition to rally around the court and call it the ‘death of Israeli democracy’. He’s setting himself up for failure.”
He has certainly given the demoralised and fragmented opposition a joint cause, one so compelling that for a few days the party leaders of the former government even stopped squabbling among themselves.
An estimated 20,000 people gathered in the first large anti-government demonstration last Saturday night in Tel Aviv. Even more are expected this weekend.
Buoyed by polls indicating that a majority of Israelis are against the Levin Plan (at least a majority of Israelis who have an opinion on it), they have a new campaign.
But ultimately the question isn’t whether the opposition can sustain a prolonged protest movement and sway public opinion.
What is likely to decide whether or not Mr Levin’s reforms are implemented are the personal and political calculations of Benjamin Netanyahu.
His appointment of the loyal Mr Levin as justice minister would seem to indicate he has his full backing, but it’s never that simple.
In the past, Mr Levin refused offers to become justice minister because he didn’t believe he would receive backing for these reforms. Has that changed? And could it change back?
Mr Netanyahu usually makes his decisions at the last possible moment. No one knows for certain whether he has decided that the best way of getting off the hook in his own corruption trial is to go ahead and eviscerate the judiciary or to emerge at some point as protector of the court.
He may have given Mr Levin the green light for now, but will be continuously weighing up his options.
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Benny Gantz (Photo: Flash 90)
A tactical retreat, in the form, say, of a cross-party commission to carefully examine the balance of powers, rather than the current gung-ho approach, could also yield political benefits.
If he proves amenable to the opposition on this issue, it could open the way for some parties to consider joining his coalition.
It sounds unimaginable right now, as calls for civil disobedience are being made, with former defence minister Benny Gantz, normally the most moderate of the opposition leaders, warning that if the government goes ahead with its plans, “Netanyahu will carry the responsibility for a civil war.”
On the other side, members of the coalition are calling for Mr Gantz and former prime minister Yair Lapid to be arrested for “incitement.” But Mr Netanyahu is always looking for options. And there are other reasons why he may want to change the composition of his coalition before too long.
The Saudi solution
In his inaugural speech two weeks ago, Mr Netanyahu mentioned three missions for his new government — and they didn’t include legal reform. The first was, of course, preventing Iran getting nuclear weapons. The second was his new pet project, a bullet train to connect Israel from north to south.
And the third was “expanding the circle of the Abraham Accords” — in other words, establishing diplomatic ties with more Arab countries. All legacy-defining achievements and, more than any other, he wants to make the biggest diplomatic breakthrough of them all — peace with the Saudis.
An Israeli official with extensive experience of dealing with the Arab regimes in the Gulf assessed the chances of that happening.
“If MBS [Saudi Crown Prince Mohammed bin Salman] continues to consolidate his rule, there’s no doubt that Israel has a willing partner,” he said.
“But MBS will have his price. From the Americans he will demand they wipe his slate clean, forget the murder of Jamal Khashoggi and accept him at the White House.
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Itamar Ben-Gvir
“From Israel he’ll need some major gestures on the Palestinian front. And it’s not because he likes the Palestinians: he doesn’t. But when the Emiratis signed the Abraham Accords, Netanyahu agreed to freeze his annexation plans in the West Bank. MBS must have something comparable to show.
“He won’t be making any gestures towards Israel while the government is cutting funding to the Palestinian Authority and cancelling the travel permits of its senior people like it did last week.”
The internal political implication is that to win his legacy-defining peace agreement with the Saudis, Mr Netanyahu will have to first make some changes to his coalition.
As long as Religious Zionism leaders Bezalel Smotrich and Itamar Ben-Gvir are in the government, the type of gestures the Saudis will be demanding towards the Palestinians are unthinkable.
But as long as Yariv Levin’s legal reforms are on the cards, Benny Gantz’s National Unity party will never join the coalition in their place.
In the end it may be the despotic Saudi Crown Prince who will determine the shape of Israeli democracy.
