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Making Sense of the Controversy Over Israel’s Judicial Reform Legislation
Israeli protesters hold flags and signs during a protest against planned judicial reforms, outside the Knesset in Jerusalem, Feb. 22, 2023. (Ilia Yefimovich/picture alliance via Getty Images)

Making Sense of the Controversy Over Israel’s Judicial Reform Legislation

For the last nearly three months, hundreds of thousands of Israelis have gathered in the streets of Tel Aviv and Jerusalem, and in dozens of other cities and towns throughout Israel, to protest a raft of judicial reform legislation that is rapidly making its way through Israel’s parliament, the Knesset. These protests have been held every Saturday night and, in recent weeks, also on weekdays when the Knesset is in voting sessions or the prime minister is trying to leave the country to meet with a foreign leader. The protesters oppose the legislation itself, calling it anti-democratic, as well as the speed with which the legislative blitz is taking place.

The judicial overhaul is the centerpiece of the Netanyahu government, which was sworn in late last year. The coalition, with a four-seat majority, intends to pass the entire judicial reform package by the end of the Knesset’s winter session on April 2, an ambitious undertaking even when the country is not facing hostility on two borders and the threat of a nuclear-armed Iran.

Since the judicial reform plan was announced, the coalition has been swiftly promoting a legislative process that will significantly change Israel’s judicial system. Proponents of the reform say they are a necessity in a country in which the courts have accumulated too much power, often becoming part of the political debate and influencing outcomes. Opponents say the reforms are no less than a constitutional coup aimed at turning Israel into an authoritarian regime.

Among the issues covered in the reform legislation are the makeup of the Judicial Selection Committee, judicial review by the Supreme Court and its ability to strike down laws it believes are incompatible with the country’s quasi-constitutional Basic Laws, judicial oversight of ministerial appointments, and a Knesset override clause.

Israel’s Supreme Court meets in session on May 4, 2020 in Jerusalem. The court ruled on March 1 that the government must award citizenship to a handful of residents who converted to Judaism through non-Orthodox institutions while living in Israel. (Abir Sultan/POOL/AFP via Getty Images)

Israel’s Supreme Court in a 1995 decision ruled that the court has the power to strike down Knesset legislation that is not compatible with two of the country’s Basic Laws, later expanded to include all Basic Laws. This ability has been used by the court to protect human rights in Israel and the territories it controls. It has also frustrated the right wing in Israel, which says that the court is self-perpetuating and has a left wing bent, and that it has used its power to strike down numerous laws supported by the right wing and ultra-Orthodox parties.

On November 1, 2022, Israeli voters went to the polls for the fifth election in nearly four years. The governments that emerged from the first three of those elections were headed by Prime Minister Binyamin Netanyahu and were narrowly right wing, the fourth election saw the formation of a center-right-left coalition of parties opposed to Netanyahu’s continued rule, ejecting Netanyahu from power for the first time in a dozen years.

Netanyahu and his Likud party were victorious again in the November election, and he cobbled together a coalition made up of parties that are even further to the right of the Likud, as well as ultra-Orthodox parties. They made judicial reform the first priority of the new government, determined to push it through the Knesset in its first session.

The opposition has repeatedly called for meetings to come to a compromise on the legislation, but will only agree to the conversations if the government puts a pause on pushing through the reform. The coalition has said it is willing to hold the talks, but will not stop pushing the legislative process in tandem.

Several components of the judicial overhaul already have been discussed in committee and debated in the Knesset plenum, and have been passed through preliminary readings by the coalition.

Last week in a live, nationally televised broadcast, Israel’s President Isaac Herzog presented what he called the “people’s directive” for compromise on judicial reform, which he later emphasized was an opening for discussion and which was widely panned by the coalition as well as many of the groups protesting the judicial overhaul.

See: Examining Israeli President’s Judicial Reform Compromise Snubbed by Both Sides

But Herzog’s plea appeared to have softened the coalition a little. On Monday, the government proposed a new model for the centerpiece of the reform package, the judicial selection process, which would still give the coalition more control over appointing Supreme Court justices, but not as much control as written in the original legislation.

Under the new model proposed for judicial selection, called a “softening” of the government’s position, the governing coalition would have full control over the selection of the first two High Court appointments during a Knesset’s tenure, as well as the appointment of the chief justice, which currently is determined by seniority. Any additional appointments would be made with input from the opposition and judicial representatives.

Today, there are nine members of the judicial selection committee, which is made up of two government ministers, two members of the Knesset – one each from the coalition and the opposition, three Supreme Court judges and two lawyers from the Israel Bar Association, which is meant to guarantee neither the government nor the opposition has an automatic majority.

The government under its original judicial reform plan wanted to give the ruling coalition a majority by changing the composition of the nine-member committee to three government ministers, two members of parliament from the coalition, one member of the opposition, the Supreme Court president and two former Supreme Court justices selected by the justice minister. With a simple majority able to select a justice, the coalition would have had the final say in all judicial appointments.

The opposition says the government’s new proposal still politicizes the appointment of justices, puts the court under the control of the coalition and, thus, harms its independence, and does not amount to a compromise.

Another aspect of the judicial overhaul is the override cause, which would allow the Knesset to override a Supreme Court decision to nullify a law. Override legislation, which has already passed its first reading in the plenum, will allow the Knesset to overrule a court decision on the legality of a law with a simple majority of 61 members. The clause would be valid for a specific bill during the term of the Knesset that passes it and for one year into the next Knesset, which must then decide whether to permanently extend the override protection. Herzog’s panned compromise proposal would continue to allow the Supreme Court to strike down legislation that contradicts Basic Laws and would not allow the Knesset to override court rulings.

Israeli President Isaac Herzog addresses the nation on Feb. 12, 2023, calling for dialogue over controversial judicial reforms. (Screenshot)

The coalition is also planning to legislate an end to “reasonableness” as a basis for judging government actions, including resolutions and policy decisions, and the appointment of ministers. This has been an area of friction between the current government and the high court, particularly because of the court’s decision to prevent Shas party head Aryeh Deri from being named a minister. Under the Herzog compromise, the Supreme Court would be barred from using the judicial test of reasonableness on ministerial appointments or governmental policy, but would be able to put it into practice for reviewing the actions of public authorities, such as state institutions and agencies, including local municipal councils and state authorities.

Another part of the judicial overhaul legislation would allow government ministers to appoint their own legal counsel, politicizing the position and the legal advice, rather than the current system of attorneys hired by the attorney general through a public tender. Currently, the ministries are bound by the decisions of these attorneys. This bill has so far not made it out of committee – it has been put on hold while other parts of the judicial overhaul are being pushed through.

The reform would also see the job of the attorney general broken into two positions, separating the defense aspects and the prosecutorial aspects and, thus, weakening the position.

The overhaul also would curb judicial review over legislation, including by preventing the Supreme Court from conducting a judicial review of Basic Laws. It would require a full bench of Supreme Court justices to preside over any case in which the legality of regular legislation passed by the Knesset is evaluated, and would require a supermajority of 80% of the justices to invalidate such legislation.

With less than two weeks to go before the end of the legislative session, the coalition is working to push the judicial appointments legislation out of the Knesset’s Constitution, Law, and Justice Committee so that it can come up for its second and third readings in the plenum. On Tuesday night and into Wednesday morning the committee voted, in batches, on some 5,400 reservations brought up about the legislation, which committee chairman Simcha Rothman of the Likud party called a de facto filibuster.

Also on Wednesday, the Knesset’s House Committee moved to fast-track a bill that would protect Netanyahu from a Supreme Court order to recuse himself during the consideration and voting on the judicial reform since he is currently in the midst of a trial on corruption charges.

Protests against the judicial overhaul were held on Wednesday near the Knesset building as lawmakers continued discussion the in Jerusalem and in Tel Aviv where some lawmakers were scheduled to attend a conference. Protest organizers have announced a National Day of Disruptions protest for Thursday, including blocking traffic near Ben Gurion International Airport where Netanyahu is scheduled to leave on a trip to London, and halting public transportation, as well as protests planned for outside of the homes of coalition lawmakers.

Israel Police chief Kobi Shabtai announced late Wednesday afternoon that the police would not tolerate the blocking of roads or any kind of violence.

 

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