By: Lawyer Omar Khamaisi
The clash between Israel’s legislative and judicial branches reached its peak on July 24, 2023, when the Knesset, after nearly nine months of debate and contention over judicial reforms, voted on the second and third readings of the “Reasonableness Standard” law. This vote marked the formalization of changes that have sparked widespread opposition. It has become clear that Israel is in the midst of a constitutional and political crisis, one that is exacerbating the political and social rift within Israeli society. This growing division is likely to further polarize the population, and it will have a direct impact on the three branches of government—the legislative, executive, and judicial—creating an even deeper fracture within the judiciary, the military, and society at large. The ongoing conflict between the government and the opposition will continue to erode the Israeli public’s trust in state institutions.
Competing Visions of Israel’s Political System
Each side in this battle sees itself as defending the identity and future of the state. The government coalition, composed of right-wing and religious extremist parties, aims to shift the balance of power between the legislative, executive, and judicial branches through its proposed judicial “reform” or “legal revolution.” The reform is primarily focused on weakening the judicial branch, particularly the Supreme Court, in order to give more power to the Knesset and the executive branch. In contrast, the opposition, which includes a broad coalition of the judiciary, liberal and secular Jewish groups, and various social, political, and academic movements, views the proposed reforms as a dangerous “coup” that would undermine the independence of the judiciary, erode democracy, and pave the way for religious extremism to dominate the state and society.
One of the key objectives of the judicial reform is to radically alter the role and function of the judiciary, particularly the Supreme Court. The reform would enable the government to pass legislation that the Supreme Court has previously invalidated, by allowing the Knesset to override the court’s decisions with a simple majority of 61 out of 120 members. This majority is small enough that the ruling coalition could effectively pass any law rejected by the court, and it would also grant the Knesset significant powers in selecting judges, thus neutralizing the Supreme Court’s role in maintaining political balance. As a result, the Supreme Court’s independence and its role as a check on government power would be severely diminished.
Since the rise of religious Zionism in Israeli politics, the country has seen an increasing divide between secular and religious factions. Despite the growing influence of right-wing religious parties in recent decades, secular Jewish elites, including those in academia, the media, and the judiciary, have maintained significant control over the state’s institutions. The shift toward religious Zionism, however, is leading to a concerted effort to capture state institutions, particularly the judiciary, and reshape the country’s identity. For many within the religious Zionist camp, the ultimate goal is to transform Israel from a “Jewish democratic state” into a state governed by Jewish law (Halakha) and the Torah. This vision, supported by many rabbis and religious groups, has triggered a response from secular and liberal Jewish factions who fear losing control of the state.
A Shift in the Balance of Power
In practice, the balance of power in Israel is shifting decisively in favor of the legislative branch, which will be able to pass laws, including Basic Laws, with minimal judicial oversight. This raises significant concerns about the separation of powers in Israel, as the distinction between the executive and legislative branches has always been blurred. Since Israel’s founding, most ministers have been members of the Knesset, leading to a deep integration between the executive and legislative functions. The judicial branch has consistently intervened in government decisions and in laws passed by the Knesset, which has led to an ongoing tension between the branches and weakened the system of checks and balances.
Moreover, the lack of a formal Israeli constitution since the country’s founding in 1948 has further complicated this issue. Instead of a written constitution, Israel relies on “Basic Laws” that govern the structure of government and the relationship between the branches of power. The absence of a constitution has allowed for a more flexible, but also more fragile, system of governance, particularly in moments of political crisis like the one Israel is currently facing.
The Impact on Palestinians and Human Rights
One of the most significant implications of this judicial conflict is its potential impact on the Palestinian citizens of Israel, who have already been subjected to systematic discrimination and exclusion. The weakening of the judiciary, particularly the Supreme Court, could result in further erosion of their legal rights. Palestinians in Israel, who have historically relied on the Supreme Court to challenge discriminatory laws, may find themselves increasingly unable to contest these laws, as the Knesset would have the power to pass legislation that the court could no longer overturn.
The judicial reforms, coupled with ongoing legislative initiatives, could lead to the imposition of even more oppressive laws targeting Palestinians. These could include restrictions on movement, freedom of speech, and political participation, as well as further legitimizing discriminatory policies against Palestinian citizens. The legal recourse that Palestinians in Israel have long relied on—particularly the ability to petition the Supreme Court to overturn unjust laws—would likely become more limited, diminishing their ability to challenge such policies.
Additionally, the reform agenda could lead to a more aggressive approach towards Palestinians in the occupied territories. With the judicial system weakened and unable to effectively scrutinize government actions, there is a real risk that Israel will intensify its policies of settlement expansion, land annexation, and the imposition of a more overtly Jewish supremacist vision for the state. This could also mean further attempts to stifle the Palestinian struggle for national self-determination, as the government consolidates its control over the judicial system and diminishes any legal challenges to its actions in the occupied West Bank and Gaza.
The Role of the Israeli Supreme Court
The Israeli Supreme Court has played a pivotal role in maintaining political and legal balance in the state. It has been instrumental in protecting basic rights, including those of Palestinians, even in the face of overwhelming political opposition. However, despite this important role, the court has also been criticized for failing to challenge Israel’s systemic racism and discriminatory laws, particularly in relation to its Palestinian citizens. The court has upheld many laws that directly harm Palestinian citizens, including the controversial “Nation-State Law,” which defines Israel as the nation-state of the Jewish people and has been widely criticized for marginalizing Palestinian citizens.
While the court has made important rulings that protect individual rights, its overall record on issues of racial and national equality has been uneven. The proposed judicial reforms, however, threaten to strip the court of its ability to protect those rights, particularly for Palestinians, both inside Israel and in the occupied territories. Without the ability to challenge discriminatory laws and government actions, Palestinians will find it even more difficult to defend their rights in the face of an increasingly authoritarian regime.
Conclusion: A Country at a Crossroads
The ongoing battle between the Israeli government and the judiciary is about more than just legal reforms; it is about the very identity and future of the state. As the government moves forward with its judicial overhaul, Israel finds itself at a crossroads. The outcome of this struggle will determine whether Israel remains a “Jewish democratic state,” as it has traditionally defined itself, or whether it shifts towards a more theocratic, ethnonationalist state governed by religious law.
For Palestinian citizens of Israel, the implications are clear: the weakening of the judiciary will likely lead to greater repression and fewer avenues for legal redress. It will further entrench the inequality they already face and pave the way for even more aggressive policies against Palestinians in the occupied territories. The struggle over the judicial reforms is not just a political battle; it is a battle for the future of the entire country, and the stakes could not be higher.
