The debate in Israel is generating a lot of heat on partisan lines, but little light. Opponents of the new government’s proposals see them stripping the judiciary of its independence and thus striking a blow to the country’s democracy. Proponents see these proposals as long overdue reforms to restrain judicial activism and bring Israel’s judiciary in line with those of other parliamentary democracies.
>> Insight from Israel: Read more from Eran Lerman
Here are the four reform proposals put forward by the new Minister of Justice Yariv Levin.
- The first reform would enable the Knesset (with certain reservations) to override Supreme Court rulings that strike down laws enacted by the Knesset. In the past, the Supreme Court has struck down 22 different laws passed by the Knesset on the grounds that the laws contradict Israel’s Basic Laws (which, in the absence of a written constitution, serve as the legal foundation on issues such as human rights). Under Levin’s suggested reform, a super majority of 12 out of the court’s 15 justices would be required to annul a law, while a simple majority of the Knesset could then override the decision. The Basic Laws, which are quasi-constitutional laws that can be approved by a majority vote in the Knesset, would not be subject to judicial review at all.
- The second reform would bar the judiciary from overruling certain executive actions (such as appointments for office) on the grounds that the action is “extremely unreasonable.” The Supreme Court most recently used this “reasonableness” test to bar the head of the Shas party, Aryeh Deri, from serving in ministerial positions in the new government. In 2021, Deri had settled a tax evasion case against him by pledging not to reenter politics (but his interpretation of this settlement differed from that of the court and was ruled to be “unreasonable”).
- The third reform would change the composition of the committee that makes judicial appointments. The existing appointment committee has a minority of politicians (four out of nine—of which one is from the opposition) and a majority of serving judges and representatives of the lawyers’ association. The reform would give the politicians of the ruling government a controlling majority on the committee.
- The fourth reform would change the reporting structure of the legal counsels of the various government ministries by making them report to the ministers who are politicians appointed by the government. Currently, the legal counsels of the ministries report directly to the independent attorney general, on the theory that the legal counsel of a government ministry should work for the public interest, and not for the minister. Proponents of the reform argue that too many lawyerly reservations have made it difficult to govern. Opponents warn that the change would give the politicians free rein to circumvent the law.
The banner of democracy is being raised on both sides. Chief Justice of the Supreme Court Esther Hayut stated in no uncertain terms that the government’s proposals are contrary to judicial independence. A forum of law professors has supported her position. The forum has concluded that although each of the four reforms has equivalents in other democracies, their overall effect amounts to an erosion of judicial independence. The British parliamentary model on which Israel’s government is based has other mechanisms, not present in Israel, that allow the British courts to have effective judicial review of executive action.
One frequently heard attack on the reform proposals is that they are actually revenge against the legal establishment for putting Prime Minister Netanyahu on trial and that the reforms are a thin cover for a ploy to annul the criminal proceedings against Netanyahu. Netanyahu denies any such intention, and Justice Minister Levin has been pushing for precisely these reforms long before Netanyahu was indicted.
Another warning against the reforms is that by reducing the judiciary’s independence, they make Israel and individual Israelis more vulnerable to international criminal proceedings on grounds of war crimes. At present, one effective defense against such proceedings is that Israel’s judiciary itself provides effective legal recourse for potential official wrongdoing. Reducing judicial independence may corrode this defense.
The four reforms are a long way from being enacted into law. Media pundits seem to think not all put forward by Levin will be passed, with the first reform—allowing the Knesset to override court rulings—attracting the most heat. Public pressure does count, and the protests are growing.
At the cabinet meeting on January 21, Prime Minister Netanyahu announced that Deri, the Shas leader, is stepping down from his ministerial posts; Deri confirmed that he will respect the Supreme Court ruling. However, if the Knesset passes a law denying review of executive appointments on reasonableness grounds, then the Supreme Court will have to find a new way of exercising legal review over executive actions like a future reappointment of Deri. The battle continues and is likely to heat up further.
