The Israeli Government’s Proposed Judicial Reforms: An Attack on Israeli Democracy
Israel’s new coalition government has proposed its first phase of Basic Law reforms. Troublingly, the proposed changes would dismantle external and internal checks on the executive’s power, including through curbing judicial oversight of the government’s and parliament’s actions. The Attorney General has indicated that the proposals would harm the core characteristics of Israel as a Jewish and democratic state, key words to invoke Supreme Court jurisdiction to strike down the suggested amendments to Basic Law: Judiciary. The stage may therefore be set for the deepest and most dangerous constitutional – and even existential – crisis in Israel’s history – writes Professor Gila Stopler
The new coalition government established after the recent elections in Israel is the most right-wing government in Israel’s history. Soon after its coming to power, the new Minister of Justice Yariv Levin announced the government’s intention to quickly push through the Knesset (parliament) a series of legislative reforms that would, among other things, seriously curtail the power of the judiciary and radically change the balance of powers between the different branches of government in Israel. Prime Minister Netanyahu and his coalition partners claim that their planned legislative reforms are needed to curb the excessive power of the Israeli Supreme Court and to restore the government’s ability to govern, which they allege has been usurped by the Court.
However, critics of the proposed reforms see them as an attack on the separation of powers essential to any democracy and as an attempt by the government to remove any checks and balances on its own power. According to critics, the government’s swift, wide ranging, and drastic moves are aimed at turning Israel into a Hungarian-style elected autocracy. While the coalition is set on pushing through the legal changes as soon as possible, huge protests against these changes and the way in which they are being carried out have erupted in Israel. In fact, the outcry over the proposed reforms has been so extensive and the expected effects so dire that even Israel’s extensive high-tech industry, which usually stays out of political debates, has joined the protests, warning that the proposed reforms will drive away investors.
A unique political and constitutional landscape
A closer look at the proposed reforms clarifies that the extent of concern over their implementation is indeed justified. The structural reforms aimed at curbing the judicial and legal oversight of government and Knesset actions include several major changes that are detailed below. When considering the proposed changes, it is important to keep in mind the following facts: first, Israel has never been a full liberal democracy, and the internal tension inherent in its dual character as a Jewish and democratic state has always been present in its legal system.
Second, Israel does not have a full constitution, nor does it have a full constitutional protection of human rights. The controversy over the status of Basic Law: Human Dignity and Liberty and especially over its use by the Supreme Court to protect constitutional rights against undue encroachment by the Knesset and the government has been a major reason for the current right-wing government’s desire to curb the powers of the Court.
Third, the parliamentary system in Israel is such that it enables the government to have full control over the Knesset through its tight control over the coalition. In Israel’s multi party-system, the coalition, which is always comprised of several parties, must obtain a majority of at least 61 out of 120 Knesset members in order to control the Knesset and establish a government. The coalition agreements, signed by all parties prior to the swearing in of the government, give the government full control over the actions and votes of all coalition members, thereby giving the government de facto control over all Knesset legislative and other proceedings. Coalition parties have a strong incentive to toe the government line since if a party withdraws its support from the government this will in most likelihood lead to new elections, in which the party may find itself in the opposition or even outside of the Knesset altogether.
Fourth, the reform is being advanced by the government through the legislation process at an extraordinary speed, without any attempt to reach a consensus and with total disregard for the harsh criticism of the proposed legislation by the Knesset legal advisors
Proposed reforms: dismantling checks on executive power
The complete control that the government has over the Knesset means that the Court’s external check – and internally, the binding legal opinions from the Attorney General and the legal advisors of government ministries – are the only safeguards against unbridled executive power. Accordingly, the government is proposing the following radical reforms in order to strip these institutions from the ability to serve as checks against executive power.
Changing the composition of the Judicial Selection Committee (JSC) to give full control over the selection to government politicians: The current method for selection of judges has been in existence since 1953. Basic Law: Judiciary stipulates that all judges in Israel will be appointed by a Judicial Selection Committee (JSC) comprised of 9 members: the Minister of Justice and an additional government minister, the President of the Supreme Court and two additional Supreme Court judges, two representatives of the Knesset, and two representatives of the Israeli Bar Association. Because the JSC has the authority over the appointment, promotion, and the removal of all judges in Israel, its composition is intended to strike a balance between ensuring professional appointments and allowing significant political involvement in the selection process.
Over the years right wing politicians have criticized the composition of the JSC claiming that it allows judges to “appoint themselves” and prevents the appointment of conservative judges. Following this criticism, the law was changed in 2008 to require a majority of seven out of nine committee members to approve the selection of Supreme Court justices. This change created the need for consensus between politicians and judges over appointments and opened the way to the appointment of more conservative judges. Nevertheless, the new government claims that under the current system judges still hold a veto power over the selection and is therefore proposing to change the composition of the JSC to give the government a permanent majority in the JSC and full control over the selection of all Israeli judges.
Granting the government absolute control over the appointment of judges to all courts would harm judicial professionalism, undermine the independence of the judiciary and politicize the judicial process.
Granting the government absolute control over the appointment of judges to all courts would harm judicial professionalism, undermine the independence of the judiciary and politicize the judicial process. Judges who know that their appointment, promotion, and removal are at the hands of ruling politicians are likely to tailor their decisions in all areas of law, including human rights law, criminal law and even civil law, to suit the outlook of the ruling coalition.
Thwarting judicial review of Knesset legislation: One of the most contentious issues in the relations between the Court and right-wing politicians has been the ability of the Court to declare unconstitutional and strike down Knesset legislation for its violation of a Basic Law, and especially of Basic Law: Human Dignity and Liberty. Under the proposed reform, Basic Law: Judiciary would stipulate that the Israeli Supreme Court can only find a statute unconstitutional by a unanimous decision of all 15 members of the court sitting en banc (or, according to another version, by a supermajority of 12 of the 15). Furthermore, the Knesset will have the power to override the decision of the Court and reenact the law by a majority of 61 Knesset members, thereby foreclosing the possibility of judicial review of the reenacted law: a 61-member majority is a majority that every coalition is guaranteed to have.
In addition, and even more importantly, the proposed reform will expressly strip the Court of any authority to strike down or limit any Basic Law, regardless of its content. This is especially harmful since the Knesset has the power to enact any law as a Basic Law, with no need for a special procedure or a special majority. The ease of enacting Basic Laws makes the fierce debate over the conditions of the override clause that allows the Knesset to revive a law after it is struck down by the Court superfluous, since the Knesset can prevent Court supervision altogether simply by enacting Basic Laws. While past suggested reforms aimed to restrict the power of the Court to review legislation included limitations on the Knesset’s ability to enact Basic Laws, the current proposed reform does not include any limitations on the Knesset, only on the Court. Consequently, these changes will strip the Court almost entirely of the ability to protect human rights and the foundational principles of democracy.
Restricting judicial review of the executive power of the government, its ministers and executive agencies: The proposed reform will abolish the ‘reasonableness’ standard in administrative review. It will prohibit the Court from reviewing decisions and actions of government, ministers, and of other executive agencies and from striking them down for being patently unreasonable as the Court is currently authorized to do. The proposed change will make it much harder, and sometimes impossible, to prevent the use of executive power in a flawed, arbitrary, or biased manner, and without proper consideration of human rights or public interest.
Changing the role of the Attorney General and government legal advisors from gatekeepers to enablers: The Attorney General and the legal advisors in the various government Ministries are currently professional appointments committed to representing the public interest, and their legal opinions are binding on the government and its ministers. Under the proposed reforms, legal advisors in government ministries will become positions of trust chosen by the Minister through a politicized and unprofessional process. The status of the legal opinions of the legal advisors will become non-binding, and state officials will be allowed broad access to private legal advice and to private legal representation before courts. These changes will enable the government and its ministers to exercise their powers irrespective of the law and is likely to facilitate governmental corruption.
In addition to the reforms detailed above, that would eviscerate the separation of powers in Israel and the checks on executive power, the new government is promoting additional measures, including strengthening the hold of politicians over the police and the military, shutting down the public broadcast corporation, and considerably restricting the right to strike, in order to accumulate even more unchecked power in the hands of the executive branch.
In the next stage of the reform, Basic Law: Human Dignity and Liberty, which is the central constitutional protection of human rights in Israel, would be downgraded to a regular law.
Moreover, Minister Yariv Levin has already stated that the reforms revealed up this point are only the first phase of the planned reforms. Apparently, in the next stage of the reform Basic Law: Human Dignity and Liberty, which is the central constitutional protection of human rights in Israel, would be downgraded to a regular law, thereby downgrading the constitutional status of the rights protected in it. The stated explanation for the proposed downgrade is that the Basic Law was legislated by only 32 Knesset members voting for the Basic Law with 21 against. While this is a perfectly valid majority for passing a Basic Law under the legislative procedures in Israel, Levin claims that the fact that less than an absolute majority of Knesset members (61) voted for the Basic Law justifies downgrading it to a regular law.
The Attorney General draws a line in the sand
In her position paper on the first phase of the government’s proposed reforms, Israel’s Attorney General, Gali Baharav-Miara, opined that the reform, if adopted, would radically overhaul the Israeli legal and judicial system, and would give the Israeli government virtually unrestrained power without providing any institutional protections for individual rights or for Israel’s democratic character. Moreover, in her position paper the Attorney General states that the reform would leave Israel’s system of government without any institutional means to protect against the improper use of legislation to harm the core characteristics of Israel as a Jewish and democratic state. This choice of words by the Attorney General is not accidental. It is meant to reflect her view that the proposed reform is so severe that it meets the test that the Israeli Supreme Court has set for its possible intervention in a Basic Law. While the Israeli Court has never intervened in a Basic Law, it did hold in its decision approving the constitutionality of Basic Law: Israel the Nation State of the Jewish People that the only limitation on Basic Laws is that they may not negate the fundamental principles of Israel as a Jewish and democratic state. The Attorney General’s choice of words seems to convey a message to the Israeli Supreme Court, as well as to the Israeli government, that if the proposed reforms are enacted and the reformed Basic Law: Judiciary reaches the Court, she is of the opinion that the Court should declare the Basic Law unconstitutional and strike it down, setting the stage for the deepest and most dangerous constitutional – and even existential – crisis in Israel’s history.
Professor Gila Stopler is Dean of the Law School and a professor of constitutional law at the College of Law and Business, Israel.
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Suggested citation: Gila Stopler, ‘The Israeli Government’s Proposed Judicial Reforms: An Attack on Israeli Democracy’, ConstitutionNet, International IDEA, 16 February 2023, https://constitutionnet.org/news/israeli-governments-proposed-judicial-reforms-attack-israeli-democracy