With bill hobbling AG, overhaul architect Rothman moves to take coalition off judicial leash

As the Knesset prepares to dissolve itself ahead of the most pivotal election in decades, the coalition is quietly yet methodically racing to advance one of the defining pieces of its legislative agenda: a bill gutting the powers of the attorney general as part of a long-running effort to weaken one of Israel’s few checks on government power.

The legislation, which would effectively strip the attorney general of authority over the government by allowing ministers to disregard the attorney general’s currently binding legal opinions and decide for themselves whether their actions are lawful, is expected to be brought for a final vote in the plenum this week.

The Knesset’s Constitution committee approved the bill for its final readings on Sunday, with coalition lawmakers racing to pass as much legislation they view as vital as possible before parliament dissolves on July 17.

Aside from defanging the potency of the attorney general’s opinions, the bill would give the coalition effective control over appointing and dismissing the person holding the office, replacing the current system under which the cabinet acts on the recommendation of an independent public committee headed by a retired Supreme Court justice.

But the legislation is about far more than the future of a single office. To many critics and boosters alike, the effort represents the latest stage in Prime Minister Benjamin Netanyahu’s government’s larger war on the judiciary, which began shortly after the government assumed power in 2023.

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In the months before Hamas’s October 7 attack shifted the national agenda, the judicial overhaul agenda sparked mass protests grounded in accusations that the coalition was attempting to fundamentally dismantle Israeli democracy.

Among the top boosters and architects of the overhaul effort has been Religious Zionism MK Simcha Rothman, a relative newcomer to the Knesset who chairs its Constitution, Law and Justice Committee.

Rothman has spent much of the government’s term advancing legislation aimed at curbing the powers of the courts, altering the selection of judges and other legal gatekeepers.

The lawmaker and coalition ministers have repeatedly accused Attorney General Gali Baharav-Miara of thwarting the government’s agenda. After the High Court of Justice froze the government’s decision to dismiss her last year, lawmakers instead turned to Rothman’s legislation to dramatically curtail the powers of the office itself.

The decision was just one of many struck down or frozen by the High Court for failing to comply with the law or the de facto constitution in recent years. The coalition, which has pressed ahead with efforts to weaken the judiciary, reshape the judicial appointments process and curtail the powers of the attorney general, has recently shifted to vowing to openly defy High Court rulings, amid an incendiary campaign to delegitimize and vilify the judiciary.

Critics of the attorney general legislation and the judicial overhaul writ large see it as an effort to remove the few existing constraints on executive power, giving the elected majority carte blanche to do as it pleases, whether lawful or not, within a political system that already lacks the institutional safeguards common in other democracies.

Supporters argue that reforms are needed to restore authority to democratically elected officials, whom they say have become subordinate to an unelected judiciary and legal establishment wielding powers unmatched in other democracies.

“Today, the strongest branch in all aspects is the judiciary,” said Rothman, who offered The Times of Israel a rare window into the constitutional philosophy that has animated the government’s judicial project for nearly four years. “The Knesset is weak and the executive is somewhere in between.”

The bill would not affect the attorney general’s authority as head of the state prosecution, including decisions on whether to open criminal investigations into senior elected officials, as had been proposed in an earlier version of the legislation.

In an effort to speed the bill’s passage, the coalition removed those provisions but has said it will pursue them in separate legislation if reelected on October 27.

Rothman said more efforts to constrain the judiciary will be on the agenda as well should he return to power, including establishing an override clause to allow a simple Knesset majority to overturn High Court rulings.

Who really holds power in Israel?

At the heart of Rothman’s constitutional philosophy is a striking inversion of the central criticism leveled at the coalition’s judicial agenda. Where critics see a government seeking to dismantle the institutions that constrain executive power, Rothman argues that the legislation does the opposite: restoring democracy by returning authority to elected representatives.

“The measures that I am promoting are not about power to the executive,” Rothman said. “They are about returning power to elected officials over non-elected officials.”

In Rothman’s telling, Israel’s democratic deficit stems not from an executive that already exercises broad authority, but from an unelected legal establishment that has steadily accumulated powers belonging to elected governments.

He rejects the notion that the coalition is concentrating power in the executive, arguing instead that Israel’s constitutional balance has already been inverted in the opposite direction.

According to Rothman, elected governments have become subordinate to an entrenched legal bureaucracy headed by the High Court of Justice and the attorney general, preventing ministers from carrying out the policies for which they were elected.

“The voters chose the prime minister to run this government,” he said. “And he can’t do this because whenever he tries to fire someone, the attorney general tells him, or the court tells him, ‘You can’t.’ Whenever he’s trying to appoint someone… he has to go through hell.”

That argument is rooted in Rothman’s view of the attorney general’s constitutional role.

Unlike in many common-law democracies, where the attorney general is typically a political appointee and member of the government, Israel’s attorney general evolved as an independent professional civil servant.

Appointed for a fixed six-year term by the cabinet on the recommendation of an independent public committee headed by a retired Supreme Court justice, the office was deliberately designed to be insulated from political pressure because of its role in ensuring that government actions comply with the law. When the legality or constitutionality of a decision or law is challenged, the attorney general is supposed to be able to represent the government in defending it in court.

In practice, the coalition has repeatedly clashed with Baharav-Miara over her findings that various decisions and pieces of legislation do not comply. She has come out against legislation abolishing the judicial standard of reasonableness, a coalition proposal to give politicians greater control over judicial appointments, and Justice Minister Yariv Levin’s refusal to appoint a new Supreme Court president, and has challenged a series of senior appointments and government decisions, several of which were subsequently frozen, modified or struck down by the High Court.

For Rothman, those repeated confrontations are evidence that the office has accumulated excessive authority.

He argued that Israel’s model concentrates too much power in the hands of an unelected official. Attorneys general should only have such wide mandates if they are political appointees who ostensibly represent the will of the people, he said, pointing to countries where this is the case.

“I can live with the British system, which gives many powers to the attorney general… if he’s an elected official,” he said. Likewise, he argued, in the United States “a lot of power is concentrated in [the attorney general], but it’s concentrated in the hands of someone chosen by the public.”

Separation of powers?

According to Rothman, Israel’s executive is uniquely constrained compared with other democracies, and reducing the powers of the courts and attorney general would therefore restore rather than distort the constitutional balance.

Constitutional scholars dispute that premise.

While attorneys general in Britain and the United States are indeed appointed by elected officials, those countries possess numerous constraints on executive power that Israel lacks, including a bicameral legislature, representative constituencies and, depending on the country, a written constitution and fixed term limits.

Constitutional scholar Guy Lurie, a senior researcher at the Israel Democracy Institute, argued that many of the institutional constraints found in other democracies never fully developed in Israel because “we have almost always been in a constant state of emergency,” he said, leaving a uniquely strong executive branch.

That, he argues, is precisely why the courts and the attorney general came to play such an important constitutional role.

“The government in Israel is actually comparatively stronger than governments in other democracies,” he said. “The reason that we were able to remain a democracy despite this fact is because of the two basic checks that do remain on the power of the government, which are the courts and the attorney general.”

Pressed on how Israel could weaken one of the few institutions that does constrain executive power while proposing no alternative guardrails, Rothman argued Israel already possesses sufficient checks and balances due to the fragmented nature of its parliament, which requires parties to build coalitions through compromise.

“The limit of a coalition government with many smaller parties representing minorities, representing different aspects of society, is that you have to negotiate basically every step of the way,” he said.

Pointing to the coalition’s repeated struggles to pass legislation opposed by its own partners — particularly over ultra-Orthodox military service — Rothman argued that governments already face substantial political constraints.

“Prime Minister Netanyahu cannot move one shekel from one ministry to the other without going through the Knesset for approval and having to negotiate,” he said.

He also argued that anyone suggesting that Israel doesn’t have sufficient checks and balances already is either ignorant of how the state’s political system functions or is “lying because he hates the government.”

Lurie rejected Rothman’s argument as “baseless,” saying that internal coalition disputes are not the same as external checks or oversight on executive power.

On the contrary, he argued that Israel’s parliament is “actually very weak” due to Israel’s unique electoral system. Unlike most democracies, Israel elects its entire legislature through nationwide party lists rather than geographic constituencies.

This, combined with the fact that few Israeli parties hold internal primaries, makes members of Knesset largely beholden not to a local electorate, but to party leadership who, in a governing coalition, also control the executive branch.

The lack of genuine checks and balances and the weakness of parliament mean that governing coalitions in Israel can have “unchecked power in terms of directing policy that we simply don’t see in other democracies,” said Lurie.

While Rothman maintains that the court should continue reviewing executive actions that in theory, violate the law, he also says that they should no longer possess the authority to invalidate legislation enacted by the Knesset.

“The court should always be the weakest branch,” he said, citing the Federalist Papers. “The court has no purse and no sword, only the public trust.”

Despite repeatedly citing constitutional systems such as those of Britain and the United States as models, Rothman rejected adopting many of the institutional constraints that accompany stronger executive authority in those democracies.

Asked why he supported the election attorneys general while rejecting measures such as a written constitution or executive term limits, Rothman replied simply: “I take the good things.”

He argued that a constitution does not itself preserve democracy and dismissed executive term limits as “incompatible with Israel’s parliamentary system.”

For constitutional scholars, the coalition’s selective borrowing from other constitutional systems lies at the heart of the disagreement. Few dispute that Israel’s constitutional arrangements could be improved or that aspects of the relationship between the branches of government could legitimately be reformed.

However, critics see the coalition’s determination to weaken the judiciary but not institute alternative checks on executive power as a signal that it is not motivated by a desire to bolster Israel’s democratic institutions. Rather, they argue, it is part of a long-standing right-wing project to remove what it sees as a bastion of liberalism that has stood in the way of its ideological agenda.

“Reforming these institutions is legitimate, but the term ‘reform,’ or even ‘overhaul,’ isn’t accurate,” Lurie said. “They don’t want to reform these institutions. They want to dismantle them.”

Historically, the Likud party and Netanyahu himself largely supported judicial independence and frequently cited Israel’s robust legal institutions as evidence of the country’s democratic character, something Rothman acknowledged.

“Netanyahu was against [judicial reform] for many years. [Justice Minister] Yariv Levin was against it. It was basically the left, me and [Finance Minister Bezalel] Smotrich,” he said.

While some within Likud had long advocated overhauling the judiciary and even pursued some isolated measures, it only became a defining project of Netanyahu’s government after he was indicted on corruption charges in 2019 and became the first sitting prime minister to stand trial the following year, leading to accusations that his government’s attempts to weaken the judiciary are, at least in part, personally motivated.

This accelerated when the coalition that took office in late 2022 united parties that had long sought to curb judicial oversight for reasons of their own: the ultra-Orthodox parties which repeatedly clashed with High Court decisions curtailing military exemptions for their constituency, school funding, and religious proscriptions in public spaces, and the far-right, who have long raised hackles over court decisions hampering West Bank settlement expansion, migrant deportations, military actions, policing and other matters.

For these reasons, critics say, the coalition’s true object is not to redesign Israel’s system of checks and balances but to weaken the institutions that have prevented it from pursuing policies found to be unlawful.

“The government simply found itself at odds with the rule of law. It didn’t want to recognize the limits imposed by the law, so it went after the institutions that maintain the rule of law,” Lurie said.

The ultimate goal, he argued, is “to eliminate checks on its power so it can act without regard to the rule of law.”

Rothman, for his part, denies this, claiming that the idea that “this is part of Netanyahu’s effort to overthrow democracy is nonsense.”

While he rejects criticism that his philosophy amounts to a tyranny of the majority, his conception of democracy offers few limits on the authority of an elected governing majority, and views the rule of law as legitimate only insofar as it does not clash with the decisions of elected representatives.

“If the claim is that in a democratic country, the majority has more power than the minority, yes, sign me up,” he said. “There is no minority right to rule the country without being elected. That’s tyranny.”