New Government-Proposed Judicial Reforms Are Tearing Israel Apart
Opponents say that the reforms threaten Israeli democracy and citizens’ basic freedoms while supporters believe it is an overdue makeover of an over-powerful judicial system
When Israeli Justice Minister Yariv Levin announced the government’s planned reforms for the judicial system, both supporters and opponents of the plan circled the date.
For opponents, there is fear and criticism that the reforms threaten Israel’s democracy and its citizens’ basic freedoms.
For supporters, it is a long overdue makeover of an over-powerful judicial system which regularly undermines the democratic rule of the majority.
For both, January 2023 will be seen as a major turning point in a struggle that is tearing Israel apart.
“The claim that the reform is the end of democracy is without foundation,” Prime Minister Binyamin Netanyahu said at the weekly Cabinet meeting on Sunday.
“The effort to restore the correct balance between the authorities is not the destruction of democracy but the strengthening of democracy,” Netanyahu also said.
The plan, unveiled by Levin on Wednesday, will limit the Supreme Court with a series of laws and changes.
The reforms will include an override clause that allows the country’s parliament, the Knesset, to override a court decision with a simple majority. The parliament will be able to reinstate laws that the court has already revoked. Greater weight will be given to politicians in the appointment of judges, and ministers will be allowed to appoint their own legal advisers; currently, ministerial legal advisers are professional civil servants. In addition, courts will also be barred from using the test of ‘reasonability’ in order to rebuke government decisions.
“To call this a reform would be the understatement of the millennium,” according to Professor Yaniv Roznai, vice-dean, Harry Radzyner Law School and co-director of the Rubinstein Center for Constitutional Challenges at Reichman University. “This is a regime change which will give unlimited power to the executive branch.”
Israel is a fragile democracy with no checks and balances. It is the government which controls the parliament that has no true ability to oversee the executive branch. The Supreme Court is the main defender of human rights in the country.
The reform also has its supporters.
“The reform is fundamentally necessary,” said Professor Eugene Kontorovich, director of International Law at the Jerusalem-based Kohelet Policy Forum. “The court has almost absolute power and has no political checks upon it.”
In 1992, Israel’s parliament adopted a series of Basic Laws dealing with issues at the heart of the country. From the role of principle institutes to basic civil liberties, most of the laws can be amended by a regular majority of the quorum, not necessarily a majority of 61 out of 120 Knesset members. The Supreme Court can overrule laws it believes contradict basic human rights and liberties. This will change should the reform pass.
In recent years, public faith in the judicial system has eroded, as it has in other systems, such as the political system and the media.
On Saturday, thousands of opponents of the reforms held a demonstration in Tel Aviv. Many opposition leaders said it would be the beginning of a battle to stop the reforms from being approved. The current government, sworn in last month, has a solid majority in the Knesset which will allow it to pass the reforms largely unhindered.
“The reform is not being proposed on the basis of a wide agreement. When undertaking constitutional changes, an open debate needs to be conducted and reforms need to be reached in agreement with the opposition with concessions being made,” said Yehuda Shaffer, former deputy state attorney of Israel.
Israel is a country without a constitution whose Supreme Court has created a tradition of constitutional law through a series of rulings. Rights such as the freedom of expression are not stated in the law, but rather guarded by a high court ruling.
“Israel is a fragile democracy with no checks and balances,” Shaffer added. “It is the government which controls the parliament that has no true ability to oversee the executive branch. The Supreme Court is the main defender of human rights in the country.”
In the past, Netanyahu was an avid defender of the Israeli legal system saying it was the guarantor of the country’s democracy. But, he has since changed his mind, perhaps due to his current legal predicament.
Netanyahu is on trial on several corruption charges. The proposed reforms will allow him, among other things, to replace the current attorney general with an attorney he appoints. This could allow revocation or amendment of the charges against him.
The timing of the reform, just days after Levin and Netanyahu took office, has to do not only with Netanyahu’s tricky position. Also appointed as minister is Aryeh Deri, who holds the interior and health portfolios. Deri was convicted of tax offenses and given a suspended sentence last year after promising not to return to politics. With the override law and the reasonability clause, the government intends to overturn a Supreme Court decision expected on the legality of his appointment.
Before the swearing in of the government, the Knesset passed a law that allows a convicted person with a suspended sentence to serve as a government minister, clearing the path for Deri. His appointment was appealed by several groups and is awaiting a Supreme Court decision.
“The reform is not fully ready and was presented without details. It doesn’t look like there was thorough work done here and not all relevant stakeholders were consulted, but rather the government is trying to coerce the reform hastily,” said Shaffer. “This is just the appetizer.”
Supporters of the reform do not share the alarm.
“The court will still remain vastly powerful, it just won’t be the final say over basic things like government appointments,” said Kontorovich. “They will still have the power to strike down laws.”
According to Kontorovich, in a highly fragmented parliament it will be difficult to get a 61-vote majority on highly controversial laws. The Basic Laws adopted in 1992 were legislated by a quorum majority of less than 61 members.
The proposed reforms could have an immediate impact on the daily lives of Israelis.
The override clause could allow the government to expropriate private property for its needs and make any law it legislates immune to judicial review. There will be no supervision on appointments in all government positions. Canceling the reasonability test would allow ministries and other branches to make decisions without taking into account environmental damage, damage to quality of life and other repercussions. New laws could deny citizens access to justice, critics say.
The court will still remain vastly powerful, it just won’t be the final say over basic things like government appointments. They will still have the power to strike down laws.
The government, which intends to change immigration laws, could also put Israel in a position contradictory to international conventions it has ratified. Any legal change the parliament will make on Israel’s hold on the West Bank territories and its control over Palestinians, for example, likely will put it on a collision course with international bodies.
These are just some examples.
“We will start seeing a relapse in the democracy, human rights and corruption indices in Israel and this will be detrimental to Israel’s international relations, but also harm foreign investments and have a long-term and far-reaching impact on the country,” said Roznai.
The Netanyahu government is already being eyed carefully in the world for being Israel’s most right-wing government ever.
“Israel has a check and balance that other countries do not have – significant international interference and monitoring of its national judicial system.” Kontorovich said. “There is absolutely no reason to think that will not be a deterrent.”
Those opposing the current proposals do not necessarily oppose the need for reforms in the judicial system. There are members of the opposition who have voiced their support for a different type of override clause or changes in how judges are appointed.
“Many people from all parts of the political spectrum have recognized the need to restore the balance between the three authorities,” Netanyahu said Sunday.
There could be a gap between the reforms purposed by the government and those that will be adopted in the end. This will depend on the public pressure and the strength, or weakness, of the Israeli opposition. With the majority the coalition currently has, it is clear reforms will be made.
