Knesset passes first reading of bill to give coalition control over choosing judges

After day of fiery protests and warring speeches, vote marks major step en route to gov’t authority over judicial selection; also limits the High Court’s capacity to review laws

By CARRIE KELLER-LYNN and TOI STAFF    21.2.23

Prime Minister Benjamin Netanyahu, left, and Justice Minister Yariv Levin, right, at the Knesset in Jerusalem, February 20, 2023. (Yonatan Sindel/Flash90)

The Knesset early Tuesday passed, in the first of three readings, a first and significant bill in the divisive effort by Prime Minister Benjamin Netanyahu’s hard-right coalition to overhaul Israel’s judiciary. It did so in the face of bitter opposition criticism and after tens of thousands of anti-reform protesters gathered outside the parliament’s Jerusalem gates.

The vote was 63 in favor and 47 against, with no abstentions, although some lawmakers boycotted the vote. The legislation now returns to the Knesset Constitution, Law and Justice Committee for preparation for its second and third readings, which are expected by the end of March.

Paired in a back-to-back vote with a related technical bill, the legislation aims to amend the Basic Law: The Judiciary to cement government control over judicial appointments and revoke the High Court’s ability to review Basic Laws.

Sponsored by the Constitution, Law and Justice Committee, the bill proposes to transform the selection process for judges, effectively putting judicial appointments under full governmental control. It also would block the High Court from exercising oversight over Israel’s quasi-constitutional Basic Laws. (This block is also aimed at preventing High Court scrutiny over the same Basic Law amendment bill that creates the mechanism.)

The vote was preceded by more than six hours of fiery debate in which coalition MKs insisted the legislation would strengthen Israeli democracy, while the opposition warned the government was destroying its foundations. The vote finally took place shortly after midnight.

The vote also came after tens of thousands of demonstrators gathered outside the Knesset waving Israeli flags and chanting “de-mo-cra-cy” as they demanded the government halt its efforts to radically transform the judiciary.

Justice Minister Yariv Levin, a key architect of the overhaul, hailed the vote as a move toward “bringing back democracy” by enabling wider representation on the judiciary.

Netanyahu celebrated the vote as “a great day.”

Opposition leader Yair Lapid lambasted the coalition, warning that the legislation will cause severe repercussions. “Coalition members — history will judge you for tonight. For the damage to democracy, for the damage to the economy, for the damage to security, for you tearing apart the nation of Israel and that you just don’t care,” said Lapid, the head of the Yesh Atid party.

Opposition National Unity Party leader Benny Gantz called it “a black day for democracy.”

“Tomorrow morning we continue the struggle,” Gantz said.

Before the vote, a number of Yesh Atid opposition MKs staged a protest in the plenum, wrapping themselves in Israeli flags as the debate started. They were escorted out of the hall. In addition to the lawmakers, a number of observers in the viewer’s gallery walked up to its glass dividers and banged loudly until they were forcibly removed.

Its coalition backers, primarily Levin and the chair of the Constitution, Law and Justice Committee, Simcha Rothman, had said they would engage in “dialogue” with the opposition once the bills cleared their first reading. Opposition leaders had warned that carrying out the first reading could be a death knell to any potential negotiations.

Rothman told the plenum that, after the vote, he would be happy to engage in dialogue mediated by President Isaac Herzog. Last week, Herzog called for the coalition to halt the legislation’s progress to enable discussion, and opposition leaders continue to say they will not engage with the coalition unless it jams the legislative brakes. The coalition has yet to pause its efforts.

Should the sides come to the discussion table, the coalition’s declared timeline may put severe time pressure on any negotiation effort.

Levin confirmed during Monday’s debate that he hopes to wrap up the “first phase by the end of the [Knesset] seating” in under six weeks, “and then the second phase” afterward.

Beyond the current bills and the multi-point plan Levin last month described as phase one — which includes radically limiting the High Court’s capacity to strike down laws, and enabling a simple Knesset majority to re-legislate them — the coalition has yet to hint at what additional judicial changes are planned.

In remarks just before the vote, Levin said the change in the judicial selection panel would “enable pluralism,” draw “judges from all parts of the people” and maintain judicial independence.

He decried what he called “campaigns of intimidation” against the change. “Efforts to prevent the legislation have failed and will fail,” Levin said. And he accused the former Supreme Court president Aharon Barak of carrying out “regime change” in asserting rights the court should not have had to judicial oversight — a process he said he was now correcting.

Nonetheless, he urged opposition leaders Lapid and Gantz to “sit and talk” on his entire program of sweeping reforms, saying, “I believe we can reach understandings.” He compared the opposition’s refusal of dialogue to Arab League rejectionism against Israel, citing the “no, no, no” of the 1967 Khartoum resolution.

“We’re passing the first reading tonight,” said Levin. “We have the political power to pass the second and third readings… But I will never stop from making every effort to achieve understandings.”

At the same time, he said, “I promise all citizens of Israel that nothing will deter me from doing the right thing — [instituting] a deep and necessary reform of the Israeli judicial system — without delays.”

Monday’s bill redistributes power on the Judicial Selection Committee, ending the current balance that requires agreement between political and professional representatives and instead creating a majority for coalition and government politicians to push through all appointments.

Removing two representatives from the Israel Bar Association, the legislation divides the panel’s nine seats equally between the judicial, legislative, and executive branches, but gives the coalition control of five votes of the nine, and requires only five votes for an appointment.

The justice minister will continue to chair the panel, and be joined by two ministers of the Knesset’s choosing. The coalition will also have two lawmakers on the panel: the head of the Constitution Committee and a second coalition MK. There will be one MK from the opposition.

Although it has long been customary to include an opposition member among the selection panel’s ranks, this will be the first time it is required by law. The second coalition lawmaker will be chosen by the Knesset speaker, while the lone opposition lawmaker will be chosen by the opposition parties.

The Supreme Court president will represent the judiciary, alongside two retired judges, in place of two current Supreme Court justices. The justice minister will choose the judges on the panel, but will obtain the Supreme Court president’s approval for his picks.

Earlier on Monday, Rothman’s committee continued to press ahead with the coalition’s next judicial reform bill, which would create preemptive immunity for certain laws, blocking the High Court from reviewing them.

Called a “notwithstanding clause,” the private member’s bill submitted by Rothman would create a mechanism for lawmakers to insert immunity from review into specific bills. Although sometimes confused with an override clause, which would enable the Knesset to reinstate laws struck down by the court, a notwithstanding clause blocks the court from striking them down in the first place.

Constitution, Law and Justice Committee member Yulia Malinovsky expressed doubt that any dialogue would yield substantive changes to the legislation.

“Preparing the legislation for the first reading was like putting a loaded gun on the table. Passing it on the first reading is like putting a gun to the head,” the Yisrael Beytenu opposition MK told The Times of Israel outside of the plenum debate on Monday evening.

Her party leader, Avigdor Liberman, later told the plenum that he does not trust Netanyahu’s government to engage in good faith dialogue over the reforms. Yisrael Beytenu boycotted the Knesset vote on the bill, with Liberman saying that he did not want to lend the proposals legitimacy by voting on them.

Throughout the months-long discussion over judicial reform leading to Tuesday’s vote, coalition lawmakers have reminded a number of right-wing opposition MKs that they in the past supported pieces of the government’s current platform. In particular, former justice minister and National Unity MK Gideon Sa’ar had recently proposed an override clause. Sa’ar has said he supported a far more limited reform.

Former Yisrael Beytenu minister Oded Forer said the comparison was misleading, because individual reforms on their own “may be okay,” but “the problem is when you put them all together,” creating a layered system of political supremacy over the judiciary.

After passing their first reading, the bills advanced by the plenum are slated to return to the same Knesset committee, which will prepare them for the second and third readings, often conducted back-to-back. Those readings could in theory take place within days, but it is thought more likely that the process will take weeks.

A broad and vocal chorus of criticism stretching from the judiciary through civil society and to the business community has warned that the overhaul moves will essentially neuter Israel’s democratic system of checks and balances. Meanwhile, foreign allies have expressed worries that the moves could leave minority rights unprotected, and the business community has warned that the turmoil could sour the investment environment in Israel, heaping more pressure on the government to enter talks and water down the plans.

Netanyahu said earlier Monday that the votes would go ahead as planned in the plenum, but that he would encourage dialogue “tomorrow.”

In a separate bill passed early Tuesday morning, the Knesset gave final approval to re-establishing the Strategic Affairs Ministry. The office was shuttered by the previous government but resurrected by Netanyahu’s coalition.

The ministry will be led by Netanyahu confidante Ron Dermer, a former Israeli ambassador to the US. Dermer will reportedly use the vaguely defined role to work toward expanding the Abraham Accords, deal with issues related to Iran’s nuclear weapons drive, and handle those and other issues in coordination with the White House.