David Kretzmer
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So it begins: A diary of the very near future

This is how the government's sweeping change to Israel's constitutional and political regime plays out
(Illustration by Avi Katz)
(Illustration by Avi Katz)

I have come in possession of a harrowing journal from the future. It’s a detailed record of a scenario that has already been set in motion. The first entry is from just 12 days from today.

21 February 2023

Last night a number of laws that are part of the plan for a sweeping change to the constitutional and political regime of Israel passed second and third reading in the Knesset. Members of the coalition were jubilant; members of the opposition looked defeated and depressed. The laws introduce the following changes in Israel’s constitutional and legal system:

  1. Instead of a Judicial Selection Committee based on a fine balance between politicians, judges and lawyers, the executive branch of government will have a majority in the committee, which can approve all appointments and promotion of judges, including the president of the Supreme Court, by a simple majority;
  2. All candidates selected by the committee as Supreme Court judges will face a hearing before the Knesset Constitution and Law Committee;
  3. Basic laws will not be subject to judicial review;
  4. The legal opinions of the Attorney General and legal advisers of government ministries will not bind the government or individual ministers. Legal advisers to government ministries will be appointed as “positions of trust”, meaning that they may be appointed and dismissed at will.

26 February 2023

The government appointed the minister of finance and the minister of national security as members of the Judicial Selection Committee, which is chaired by the minister of justice. The minister of justice appointed the two representatives of the public on the committee: one is a member of the Likud, the other a member of Shas. The minister announced that he will be convening the committee to choose a new president of the Supreme Court, to replace Justice Esther Hayut who will be retiring this year, and judges to replace three other judges who will be retiring.

28 February 2023

Today, the minister of national security demanded that a member of his party be appointed to the Supreme Court. He declared that if this demand is not met he would support legislation to dissolve the Knesset and hold new elections. A group of members of the Likud Central Committee presented the candidacy of one of their group to be the new president of the Supreme Court. Members of this group are all supporters of the minister of justice and they made it clear to him that if their candidate is not appointed, the minister will face problems in being elected to the party list in the next elections.

14 March 2023

The minister of justice published his list of candidates for positions on the Supreme Court. One is a member of the minister of national security’s party, another is the lawyer supported by members of the Likud and a third is a lawyer who represented the Likud in a number of cases. The president of the Supreme Court nominated three district court judges as candidates.

15 March 2023

A government ministry reviewed the proposals submitted to a government tender for construction of a new highway in the Negev. The cheapest proposal was submitted by a local contractor from Yeruham named Moshe Cohen. The engineers who examined his proposal found that it met all the required standards. A second proposal was submitted by Yitzhak Levy, a large contractor who is a major political supporter of the minister. Levy’s proposal was more expensive than Cohen’s and the ministry’s engineers also raised doubts as to whether it met all the technical requirements. The ministry’s legal adviser informed the minister that she was bound by law to approve the cheaper proposal of Cohen. The minister said she had heard his opinion but decided otherwise. Levy was awarded the lucrative contract and the ministry informed Cohen that his proposal was rejected.

Cohen was convinced he should have been awarded the contract. He sought legal advice. The lawyer informed him that his chances of winning a case against the ministry were slim since he would have to prove that there was a fault in the ministry’s decision. In any event, if Cohen wished to take legal action he would have had to pay legal fees of NIS 100,000. Cohen decided he couldn’t afford to sue the ministry and gave up.

3 April 2023

Today the new Judicial Selection Committee met to elect a new president and three judges of the Supreme Court. The current president of the Court submitted the candidacy of Justice Yitzhak Amit for the post of president, in keeping with the seniority rule that has prevailed until now. The minister of justice submitted the candidacy of the person recommended by his supporters in the Likud. The minister’s candidate was chosen by a majority of 7 against 4. By the same majority, the committee selected a member of the minister of national security’s party and the lawyer who represented the Likud in court as Supreme Court judges. The committee also unanimously selected a district court judge as a judge of the Court.

13 April 2023

The Knesset Constitution and Law Committee met to consider the Supreme Court candidates selected by the Judicial Selection Committee. Members of the opposition wished to question the candidates on their political connections, but the chair would not allow the questions. He insisted that questions relate only to candidates’ professional qualifications. By a majority of the coalition members of the Committee, the minister’s candidates were approved and the hearing for the district court judge began. One Knesset member asked the judge whether it was true that he awarded damages to a Bedouin girl who was injured by the Border Police. When the judge answered in the affirmative the Knesset member declared that the judge lacked “national pride.” Another Committee member asked the judge whether he agreed that the people of Israel cannot be occupiers in their own land. The judge refused to answer the question but explained that in cases relating to Judea and Samaria, he would follow the jurisprudence of Israel’s Supreme Court that this territory is subject to a regime of belligerent occupation. Chaos followed. One Committee member shouted that he always knew the judge belonged to the “extreme left.” Another MK stated that the days in which judges like him will sit on the Supreme Court are over. The judge stood up and announced he was withdrawing his candidacy. His announcement was met with applause.

27 April 2023

Today, by a majority of 63 of its members, the Knesset passed an amendment to the Basic Law: The Government. The amendment provides that the prime minister will be immune from civil and criminal legal proceedings during his tenure, and for five years after it ends. The provision states that the amendment will enter into force immediately and that the court must suspend any ongoing legal proceedings against the prime minister.

28 April 2023

Three petitions were submitted to the Supreme Court (all before the newly appointed judges have taken their place on the Court) requesting the Court to order that the legal proceedings against the prime minister continue. The prime minister appointed a private lawyer to represent him. The lawyer submitted an application to the Court to summarily dismiss the petitions, as the Court has no power to review a basic law. The Court dismissed the application and decided it would hear the case. The minister of justice declared that if the Court hears the case it will be acting outside of its authority and that any decision it takes will be null and void.

5 May 2023

Today, the Supreme Court held that a basic law must deal with general principle, and that the Knesset does not have the power to pass a personal law as part of a basic law. It ruled unanimously that while the amendment to the basic law is valid and may not be challenged in Court, the provision that the law will apply to ongoing proceedings violated the basic principles of the rule of law, as well as the right to equality which is part of human dignity protected under the Basic Law: Human Dignity and Liberty. The Court held that the provision applying the amendment to ongoing proceedings did not meet the demands of the limitations clause in the Basic Law, and was therefore invalid. It declared that the district court must continue hearing the trial against the prime minister.

6 May 2023

The minister of justice stated that the Court exceeded its authority and that its judgment is null and void. He said that if the judges in the district court continued the trial against the prime minister, he would close the court.

8 May 2023

The judges hearing the trial against the prime minister ignored the minister of justice’s threat. They summoned all the parties for the next session of the court, to be held on 15 May 2023.

15 May 2023

At 7:30 a.m., Border Police forces appeared at the district court in Jerusalem. They locked the gates to the building and denied entry to all who…

The last item was the final entry in this journal. On May 16, after the present part of the journal was published in the Times of Israel, its writer was arrested and charged with sedition. He informed me through his lawyer that if and when he is released he will continue writing and publishing the journal.

About the Author
David Kretzmer is an emeritus professor of constitutional and international law.