Netanyahu's all fronts against the Supreme Court

JerusalemIsrael will go to the elections with an open institutional wound. In the final hours before the dissolution of Parliament, the government has pushed through a package of laws that reactivates a conflict that marked the beginning of the legislature: the struggle between the government and the Supreme Court for control of the State's main power mechanisms.

During a legislative marathon, the executive has pushed through reforms affecting various institutional checks and balances: the role of the Attorney General, the regulation of the media, and the military service of ultra-Orthodox Jews. For critics, they are part of the same strategy aimed at reducing limits on executive power. For the government, they are necessary measures to regain authority in the face of a judicial system it considers excessively interventionist.

“It must be understood that Israel does not have many of the rigid control mechanisms that exist in other democracies: we do not have a rigid constitution, a second parliamentary chamber, or a federal system,” Yaniv Roznai, a professor at Reichman University's Law Faculty in Israel, explains to ARA. “Basically, the main controls on political power are the Supreme Court and the Attorney General. And precisely because of this, they are the main target of this judicial reform”.

One of the laws recently approved features Gali Baharav-Miara, the Attorney General and the chief public prosecutor in the corruption trial against Prime Minister Benjamin Netanyahu. Her legal opinions have traditionally been binding for the government, but the new law approved this week limits her power. Ministers will be allowed to reject her legal opinions, and her appointment and dismissal will be politicized, replacing the current system, which is based on the recommendation of an independent public committee chaired by a former Supreme Court judge. The regulation has already been appealed to the Court.

The law affecting the recruitment of ultra-Orthodox Jews has also been controversial. Last week, parliament approved a new law that limits the legal consequences for these young people who do not join the ranks. For the ultra-Orthodox parties, essential for maintaining Netanyahu's coalition, the measure has been a victory, but for a large part of Israeli society, it consolidates social inequality. The Supreme Court has temporarily suspended its application and has requested explanations from the government before analyzing its legality. 

In this context of tension, the government has another open front with the Supreme Court: the media. A few days ago, the executive announced that it did not accept a ruling from the Court that allowed the Council of the Second Authority for Television and Radio to resume its activity. Although the practical effect of this declaration is limited, critics warn that the message is serious: if the executive decides not to apply judicial rulings, the principle of separation of powers is called into question and the door is opened to a constitutional crisis.

In parallel, Parliament has approved a new audiovisual law, also challenged before the Supreme Court, which modifies various oversight mechanisms and strengthens government control over aspects such as channel regulation or advertising distribution. According to various press organizations, the regulation also benefits Channel 14, the channel closest to the government, by exempting it from an obligation that will affect the rest of broadcasters: providing certain content free of charge.

"Salami method"

The tension between Netanyahu's government and the court has also reached the appointment of the State Comptroller. The parliament elected Michael Rabello, an attorney close to Netanyahu, but the Supreme Court annulled the vote, considering that several coalition deputies had violated the secret ballot requirement. Although the Minister of Justice, Yariv Levin, even defended that Rabello should assume the position anyway, the institution remains in a state of uncertainty.

For Israeli analysts and experts, this struggle can only be understood if all laws are viewed as a whole. "We have to look at it cumulatively," says Roznai. "Instead of pushing for a major constitutional reform, the government has opted for the 'salami method': small laws, regulations, and administrative decisions that, one after another, gradually weaken the judiciary." According to the expert, the major judicial reform presented in 2023 did not disappear after the massive protests, but is being applied in a fragmented manner.

That reform, driven by Minister Levin, a member of Netanyahu's Likud party, aimed to reduce the Supreme Court's ability to control the decisions of the Parliament and the government, as denounced at the time by constitutional law experts, opposition members, civil society organizations, and research centers such as the Israel Democracy Institute (IDI). The proposal stipulated that only a special majority of the fifteen justices could annul a law approved by the parliament, allowed the chamber to re-approve rules overturned by the court, and limited the use of the "reasonableness" criterion, a tool that courts use to review administrative decisions considered extreme or abusive.