Why does populist Netanyahu seek to reform Israel’s judiciary?

Benjamin Netanyahu’s populist ideology, anchored in the notion that he embodies the genuine and morally upright voice of the Jewish people in Israel, fuels his resolve to confront institutions that hinder his government’s agenda. From his perspective, entities such as the judiciary that intervene and obstruct the realization of the people’s will become subjects of his critique and endeavors to undermine their autonomy. While his recent declaration of a “pause” on judicial reform may be momentary, it implies that he could recommence his endeavors to restrict judicial independence in the future.

By Nicholas Morieson & Ihsan Yilmaz 

On March 27, 2023, Prime Minister Benjamin Netanyahu of Israel made an announcement stating that the government would temporarily halt its plans to reform the country’s judiciary. This decision came after a series of escalating anger and protests against the proposed reforms, which have been widely criticized as an attack on the principles of the separation of powers and the rule of law.

The proposed legislation, which was introduced by the Likud Party in January 2023, aimed to grant greater control over the judiciary to politicians in the Israeli parliament, known as the Knesset. If implemented, this legislation would have allowed a majority in the Knesset to overturn decisions made by the Supreme Court on constitutional matters. Additionally, it sought to increase the government’s authority in appointing judges, thus undermining the independence of the judiciary.

The Likud government’s plan provoked outrage from centrist and left-wing parties, which are typically in opposition to Likud. The proposal also sparked massive protests among the Israeli public and drew criticism from members of the judiciary, as well as several foreign governments. For example, in a speech described as “fiery”, the chief justice of the Supreme Court of Israel called the proposed legislation “a fatal blow to democracy” which would give the Likud-led government “almost unrestrained power” and would “weaken constitutional protection over … human rights.”

Netanyahu and Yariv Levin, the Deputy Leader of Likud and the Justice Minister, defended the proposed judiciary reforms, arguing that increased government control over the judiciary is necessary because Israeli judges allegedly disregard the will of the people and obstruct the legislative efforts of elected officials. Levin further asserted that the judiciary is undemocratic, stating, “We go to the polls and vote, choose, but time after time, people who we didn’t elect decide for us.” In essence, Levin believes that Israeli judges wield excessive power, and Likud’s objective is to curtail this power and restore it to the hands of “the people.” They argue that the judiciary’s perceived overreach interferes with the democratic process, where elected officials should have the authority to make decisions on behalf of the citizens.

At the same time, Likud plans to expand the power of the religious, and often conservative, Rabbinical courts, giving them “the power to officiate on civil issues for the first time in 15 years.”

Confronted with widespread anger, opposition within his own party and coalition partners, and concerned that the divisive proposal had set Israeli society “on a dangerous collision course”, Netanyahu decided to delay voting on the legislation and instead seek dialogue with opposition forces. However, in a speech announcing the ‘pause’, Netanyahu was adamant that the reforms were good and necessary and that he would continue to pursue them, saying his party would “not allow anyone to rob the people of its free choice”.

If Likud’s plan to diminish the power of the judiciary is unpopular with voters and has engendered a backlash in the form of mass protests and claims that Netanyahu is tearing up the very fabric of Israel’s constitution and pushing Israel toward “civil war”, why is Netanyahu so adamant that the legislation should, at least in some form, be passed? Some commentators have suggested that Netanyahu’s primary motivation is self-preservation, and a desire to avoid being convicted on corruption charges based on claims he accepted bribes and participated in other forms of criminal conduct. There is likely some truth to this claim. Indeed, Likud has already passed a law preventing the judiciary from declaring Prime Ministers unfit for office. However, Netanyahu is far from the only populist who has sought to diminish the power of the judiciary and centralize power around himself. Indeed, following an election victory, and to cement themselves in power and continue to present themselves as fighting ‘elites’ despite themselves being in government, populists often seek to attack the independence of state institutions, which they accuse of thwarting the will of ‘the people.’ 

For example, Poland’s ruling populist Law and Justice Party (PiS) has, since returning to power in 2015, legislated to increase their government’s ability to appoint judges, including to Poland’s Supreme Court. In 2017 the Sejm, Poland’s lower house of parliament, was given new powers allowing it to appoint members to the previously independent body, the National Council of the Judiciary that made judicial appointments. The PiS dominated Sejm and then stacked the body with 15 of their own appointees, effectively giving PiS the ability to decide which judges are appointed to the Supreme Court. PiS argued that the new appointees will better represent ‘the people’, and that greater government control over judicial appointments is necessary in order to root out the old “privileged caste” that dominated the judiciary and ignored the will of ‘the people’.

The far-left populist government in Venezuela has also moved to eliminate judicial independence in the name of pursuing a socialist revolution that would ultimately give power to ‘the people’. Hugo Chavez began the process of stacking the Supreme Court with supporters of his regime and suspending unsympathetic judges, a trend continued by his successor, Nicolás Maduro, whose policies, according to an Office of the United Nations High Commissioner for Human Rights, have left “the independence of the justice system …considerably undermined.”  Moreover, according to Human Rights Watch, Venezuelan “judicial authorities have participated or been complicit in …abuses”, including “extrajudicial executions and short-term forced disappearances”, crimes enabled by the “lack of judicial independence”.  

Throughout the history of the Turkish Republic, the concept of a truly independent judiciary has been elusive. However, under the leadership of populist President Recep Tayyip Erdogan and his Justice and Development Party (AKP), attempts to diminish the already limited independence of the judiciary have become more pronounced.

One significant event that provided an opportunity for Erdogan and the AKP to assert control over the judiciary was the mysterious coup attempt in 2016, which targeted their government. Taking advantage of the situation, the AKP took steps to remove judges who were perceived as unsympathetic to their agenda. Approximately 4,000 judges who were believed to be aligned with anti-AKP factions within Turkish society were dismissed from their positions following the coup attempt. Simultaneously, the AKP utilized its power to appoint judges who were supportive of the party. This led to a significant influx of pro-AKP judges, with approximately 9,323 new judges and prosecutors recruited between the failed coup and the end of 2020, leading to a bizarre situation in which “at least 45% of Turkey’s roughly 21,000 judges and prosecutors have three years of experience or less”.

This trend has raised concerns about the independence and impartiality of the Turkish judiciary. These actions have further eroded the separation of powers and the checks and balances necessary for a functioning democracy. The rapid appointment of inexperienced judges has fuelled scepticism about their ability to uphold the rule of law and ensure fair and impartial judicial proceedings.

The AKP has since used its control over the judiciary to abuse the judicial system, using it to persecute opponents, often accusing them of terrorism. Indeed, the decline of judicial independence in Turkey has led, according to a Council of Europe Commissioner of Human Rights report, to “unprecedented levels of disregard for even the most basic principles of law, such as the presumption of innocence, no punishment without crime and non-retroactivity of offences, or not being judged for the same facts again.” The Turkish government defended its actions by claiming that the people removed from the judiciary and those otherwise persecuted “are affiliated with FETO, a terrorist organisation that has infiltrated the civil service over the years”, suggesting that the government was merely protecting the Turkish people from criminal wrongdoers.  

The attacks on judicial independence in Turkey continue to this day and are perpetrated not merely by the AKP, but also by its allies. For example, in March 2023, Nationalist Movement Party (MHP) leader Devlet Bahçeli – whose party is a junior member of the coalition government led by the AKP, attacked Turkey’s constitutional court for ruling that the government’s freezing of the pro-Kurdish Peoples’ Democratic Party’s bank accounts was unconstitutional. Bahçeli responded to the decision by calling the court “the backyard of the separatist terrorist organization” and claiming it “is not the court of the Turkish nation” insofar as its decision failed to represent the desires of the Turkish people. 

Of course, it is not only populist governments that seek to diminish or eliminate judicial independence. Autocratic regimes of various ideologies often desire control over the courts, while even liberal democracies that emphasize the separation of powers may encounter challenges with governments attempting to influence the judiciary.

A notable example is the United States, where the Supreme Court has long been a political battleground between Republicans and Democrats. The Court has become a focal point for key cultural and social debates, including issues like affirmative action, same-sex marriage, and abortion. During election campaigns, both political parties pledge to appoint justices who align with their party’s ideology, effectively undermining the independence of the judiciary and turning the Supreme Court into a politicized institution.

In many other countries, governments attempt to “pack” the courts with judges who align with their political agenda or take steps to weaken the independence of the judiciary. These actions occur in both autocratic and democratic contexts, reflecting a broader trend where governments seek to consolidate power and influence over key institutions, including the judiciary.

Such attempts to undermine judicial independence have far-reaching implications for the rule of law, the protection of individual rights, and the overall health of democratic systems. They raise concerns about the impartiality of court decisions and the potential for politicization of justice.

However, while many different kinds of governments may seek to diminish the independence of the judiciary, populists differ from non-populists in two important ways. First, populists often argue against judicial independence by asserting that a powerful and independent judiciary can hinder the “will of the people.” Populists generally believe that democracy does not solely rely on the right to vote or the protection of minority rights and dissenting voices. Instead, they argue that the majority group, which they perceive as the authentic and morally virtuous people, should hold all power. This can take the form of direct democracy, where decisions are made through plebiscites and referenda, or through a political party and a single leader who claims to understand the will of the people. Populists view judges as an undemocratic group that should be entirely stripped of power if they intervene to strike down government legislation. Populists tend to view judges as obstructing the populist agenda and impeding their ability to enact policies that align with their vision of the “people’s will.” They often criticize judges for being detached from popular sentiment and accuse them of imposing their own biases and ideologies on the legislative process. Populists also argue that the judiciary should not possess the authority to overturn decisions made by elected officials, as they consider it an affront to the principle of majority rule.

Second, once populists have succeeded in winning an election, and especially after winning successive elections, they may find it difficult to portray themselves as fighting against a governing ‘elite’ in the name of ‘the people.’ After winning elections and governing for a significant duration, populists can find it challenging to maintain the image of being outsiders fighting against a governing “elite” on behalf of the people. As they become part of the establishment themselves, it becomes necessary for them to identify new “elites” to position themselves against in order to sustain their populist rhetoric and maintain their appeal as champions of the people.

In this context, the judiciary often becomes a target for populists. Judges, who typically uphold the principles of separation of powers, judicial independence, and the rule of law, are likely to resist populist attempts to bypass legal procedures and override constitutional protections. Being highly educated professionals with a commitment to legal principles, judges may not align with populist parties or support their legislative agenda. Populists and their supporters often perceive judges as part of a cultural “elite” that they view as immoral and disloyal to the ordinary people.

This portrayal of the judiciary as an enemy of the people serves the populist narrative by allowing them to position themselves as the defenders of the “real people” against an alleged “corrupt elite.” By framing the judiciary as part of the elite and presenting themselves as the voices of the people, populists can maintain their outsider status and continue their fight to reclaim power on behalf of their supporters.

For Benjamin Netanyahu, who is Israel’s longest-serving Prime Minister having served in the position for fifteen years, and who is the most significant politician of his generation, the fight to reform Israel’s judiciary – despite its dangers to Israel and the popularity of the Likud led government – thus serves an important purpose. It is no longer easy for Netanyahu to present himself as a populist outsider, having marginalized all left-wing opposition – which Netanyahu and Likud have long portrayed as too sympathetic and indulgent towards the Palestinians – and having served as Prime Minister for almost the entirety of the post-2009 period.  

Pursuing judicial reform helps Netanyahu present himself as a populist fighter struggling against Israel’s unelected ‘elites’ in the name of the people, whom he seeks to protect from outside and internal forces that seek to destroy the Jewish state. Moreover, Likud’s decision to empower religious courts while attacking the independence of the secular courts is a demonstration of their commitment to de-secularizing Israel, and in a sense to create an alternative system of justice to the ‘elite’ dominated secular judiciary.  It is also the logical outcome of his populist ideology and belief that he represents the voice of the authentic and morally good Jewish people of Israel. That rigid populist logic demands that Netanyahu attack bodies and institutions that impede his government’s agenda and which, by doing so, also prevents the people from exercising their will. Thus, Netanyahu’s ‘pause’ on judicial reform may prove to be just that, a pause before he again attempts to diminish judicial independence and the ability of judges to thwart the will of ‘the people’.