PM's u-turn

PM says original overhaul proposal ‘was bad,’ but must fix how Israel chooses judges

In a conversation with Elon Musk, Netanyahu calls the legislation his coalition has been advancing through the Knesset a ‘mistake’ that would ‘reject one imbalance by creating another’.

Prime Minister Benjamin Netanyahu speaks with Elon Musk (not pictured) during a live discussion on the social media platform X, at the Tesla factory in Fremont, California, September 18, 2023. Photo: X video screenshot
Prime Minister Benjamin Netanyahu speaks with Elon Musk (not pictured) during a live discussion on the social media platform X, at the Tesla factory in Fremont, California, September 18, 2023. Photo: X video screenshot

Prime Minister Benjamin Netanyahu said on Monday that his government’s original judicial overhaul proposal “was bad” and a “mistake” that would have “mov[ed] the pendulum from one side to the other,” months after the coalition he leads advanced the plan through the Knesset’s legislative process. But he said he still intended to change the way Israel chooses its judges, calling this “a minor correction.”

The comments — made during a conversation the premier held in San Francisco with US billionaire Elon Musk, and which was live-streamed on Musk’s X social media platform — appeared to mark a U-turn for Netanyahu, who in January authorised his government to advance the overhaul package and its many bills at lightning pace despite mass protests and opposition voiced by countless top officials. He publicly defended that plan in multiple media statements and appearances.

Netanyahu suspended the legislation in late March, as the country descended into near-chaos, with intense protests, threats of nationwide strikes and a threatened refusal to serve by tens of thousands of army reservists. Some of the legislation has remained frozen since then, but a law barring the courts from using the “reasonableness” standard to review ministerial and government decisions was enacted in July, and the core bill, remaking the Judicial Selection Committee, is a mere floor vote away from becoming law.

On Monday, the premier appeared to offer a different narrative, one according to which he quickly decided to stop the legislation of his own accord due to its problematic nature.

“I have a majority in the parliament, in the Knesset, to legislate anything, but I didn’t. I held back because I want this to be a consensus,” he said.

“I came in [to office] and there was a proposal put in which I thought was bad,” Netanyahu said during the talk with Musk, referring to planned legislation unveiled by Justice Minister Yariv Levin in January, less than a week after the coalition took office. It would “reject one imbalance by creating another imbalance. If the court can rule against any decision made by the government or the parliament, then let’s not correct it by having the parliament reject any decision, with a simple majority, that the court makes.

“I thought that was a mistake. It was moving the pendulum from one side to the other side,” Netanyahu said.

In this handout photo, Prime Minister Benjamin Netanyahu (right) speaks with Elon Musk during a live discussion on the social media platform X, at the Tesla factory in Fremont, California, September 18, 2023. Photo: Avi Ohayon/ GPO

During a conversation that also focused on antisemitism, confronting rogue actors and nations, and artificial intelligence, it was Musk who first raised the topic of the judicial overhaul, noting protests that were being held outside his Tesla offices, as part of demonstrations that accompanied the premier since he kicked off his US visit earlier in the day.

Musk noted that, “to be frank, I’ve probably got the most amount of negative pushback from people at Tesla about this interview than anything else I’ve ever done.”

Netanyahu, in response, claimed many of the people protesting did not know what the overhaul was about.

“Israel was, is, and will always be a robust democracy,” Netanyahu said.

“It’s we the people, not we the elites,” he continued. “We the people rule.”

Thirty years ago, he said, the balance in Israel between the three branches of governance “began to change. And we have the most activist judicial court on the planet… Democracy is supposed to be checks and balances of the three branches on each other. In Israel, the judiciary has no checks and no balances. It just has power. So there is a request to try to bring it back into line and that has been sort of boiling all the time.”

The original overhaul plan, presented by Levin on January 4, would drastically limit the authority of the High Court of Justice to block legislation and government decisions deemed discriminatory and/or undemocratic, allow the Knesset to preemptively shield any piece of legislation from judicial review, give the government complete control over the selection of almost all of the country’s judges, and allowed ministers to appoint — and fire — their own legal advisers.

By passing the reasonableness law, Netanyahu said on Monday, “we made the minimal changes that would bring back a little of the balance that we had in Israel’s first 50 years. And that’s what we’re trying to do now.”

The reasonableness law is being challenged in the Supreme Court, in a legal dispute that is threatening to devolve into an unprecedented constitutional crisis.

Protesters rally outside Tesla’s factory as Israeli Prime Minister Benjamin Netanyahu plans a visit with businessman Elon Musk on Monday, Sept. 18, 2023. Photo: AP Photo/Noah Berger

Netanyahu said he was looking to forge consensus with the opposition on judicial reform and that when he gets back to Israel, he will be focused on finding “a happy middle.” Still, Netanyahu also told Musk he intended to change the way Israel chooses its judges, arguably the central element of the overhaul package.

If he can’t find common ground with the opposition, he added, “then I want to sit with the public — that is to have as broad a consensus for a minor correction, basically some correction on how we choose judges, because otherwise… we have… in many ways 15 unelected officials — by the way, gifted people, but they replace the government. They’re sort of unelected, and they decide everything. That’s not exactly democracy.”

The current version of the judicial selection remake, under which the coalition would control almost all appointments throughout the hierarchy, is ready for its final readings, although there have been numerous reports that the coalition is considering changing its provisions.

Netanyahu said he was unfairly being described by his opponents as something between Attila the Hun and Genghis Khan: “It’s not an easy thing to be maligned.”

“Certainly, the press in the US has not portrayed the reforms you mentioned in a positive light,” responded Musk, before Netanyahu griped about The New York Times’ coverage — a “fantastic, obsessive campaign” against the overhaul. “But they usually get it wrong, so it’s not important.”

Israel, contended Netanyahu, will “be a stronger democracy after the dust settles.”

Netanyahu’s Likud party later sought to reframe his remarks about the original package of legislation being “bad,” saying Netanyahu had “only” been referring to the so-called “override clause,” which would allow the Knesset to preemptively or retroactively block judicial decisions striking down legislation and is considered one of the most radical elements of the judicial overhaul.

Netanyahu has publicly said the coalition will no longer pursue an override clause, but privately, he reportedly told ministers in July it is still on the table.

“Contrary to what has been reported, the prime minister did not reject the judicial reforms at all,” Likud said in a statement. “During the conversation with Elon Musk, he only referred to a sweeping override clause by a simple majority, and the coalition leaders already agreed months ago that a balance in the courts could be achieved in other ways.”

While Netanyahu was in the US, Levin met at the Knesset with leaders of right-wing organisations, telling them that he had no intention of stopping the judicial overhaul, Channel 13 reported.

“If someone thinks the reforms should be withdrawn, halted or canceled, this will only put more pressure on the government. Their whole goal is to take down the government, and under no circumstances will this government fall,” he said.

“It’s clear that this whole process is about the question of who will rule here, and they’re not ready for us to run the country. So, even if there are no agreements, I have no intention of canceling the reforms,” Levin said.

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