FeaturesLast month, protests in Israel challenging Prime Minister Benjamin Netanyahu’s proposed judicial reforms reached a boiling point. On March 26, after weeks of mounting pressure, the Security Minister, Yoav Gallant, took to national news to announce his opposition to the ongoing legislation. He declared that the proposed changes posed a danger to Israel’s national security and called for a pause in legislation to allow for discussion and negotiation on a different reform that would have a broader agreement.
Following that, the same evening, Netanyahu fired Gallant, which proved to be the last straw for many Israelis. The firing ignited widespread outrage and unorganized protests throughout the night. Roads were blocked, and fires started as citizens expressed anger and frustration.
But how did we get to this point? It all began about five months earlier when Israelis went to the polls for the fifth time in three and a half years. This time, they elected Netanyahu to a sixth premiership with the most extreme, far-right, nationalistic, and exclusionary government in Israeli history. Despite the numerous rounds of elections, the government managed to produce a relatively stable coalition of 64 seats out of 120.
The first order of business for the new government was a sweeping reconstruction of the country’s judiciary, which was met with a wave of opposition and triggered ongoing protests. Since the 1980s, Israeli courts have become progressively more activist in nature, showing increased intervention in the decisions of government authorities. The increased power of the court, among other reasons, presents a need for reform to restore a balanced system of checks and balances. However, the proposed reform uses “legal stealth” to gather unbalanced power to the legislative and governmental authorities without fixing the existing problems in the legal system.
To better comprehend the proposed reform, let’s begin with delving into Israel’s legal and governmental system”
Israel’s Governmental System:
Israel is a parliamentary republic with branches: executive (led by the Prime Minister and other Ministers), legislative (represented by the 120-member Knesset, which can pass laws and act as a constituent Body), and judiciary (tasked with protecting individual rights and checking the power of the legislature and government).
The Prime Minister and other Ministers lead the. The Government is drawn from the Knesset itself, as the Ministers are chosen from the members of the coalition factions and can serve simultaneously as members of the Knesset.
The legislative body is represented by the 120-member Knesset. Since no party has ever won an electoral majority, a multi-party coalition is necessary. The Knesset can legislate laws and also act as a Constituent Body. Israel does not have a formal constitution and instead has “Basic Laws”, which hold a superior status to regular laws and can be legislated either in a regular or special majority. Currently, only a few require a special majority to change.
The Knesset also has the power to supervise the Executive Branch, which is served by the confidence of the Knesset, resigning upon the election of a new Knesset. The Knesset can express non-confidence in the government, causing it to resign.
The President mostly has a formal statute in the state and lacks actual governing authority.
The Israeli judiciary plays a crucial role in upholding the rule of law and safeguarding individual rights as part of the checks and balances system. Due to the lack of a Constitution and Bill of Rights, coupled with remnants of oppressive laws from the Mandatory period and the extensive powers of the Israeli legislature, the judiciary’s responsibilities are particularly weighty and sensitive. In a landmark ruling in 1995, known as “The Mizrahi Bank” Case, the Supreme Court established that it has the authority to nullify laws enacted by the Knesset that contradict the fundamental laws, except in cases where doing so would hinder a “worthy purpose” and “to the extent that the requirement does not arise.”
Over the years, the Israeli Supreme Court has raised the question of whether it has the power to conduct a judicial review of the basic laws of the Knesset. The issue arises from the tension between the constitutional status established for basic laws in court rulings and the lack of formal impediments preventing the Knesset from enacting basic laws that are unconstitutional or contradict the constitutional system’s fundamental values. In response, the court has developed two doctrines to review such situations: the first – “abuse of constituent authority”, to review a situation where the Knesset establishes an arrangement in the Basic Law that does not fit the constitutional environment. The second – “unconstitutional constitutional amendments”, which criticizes constitutional legislation that deviates significantly from the fundamental values expressed in the set of sources of the constitutional system of Israel as a Jewish and democratic state. These doctrines have only been invoked through a “nullity notice” against future constitutional legislation, emphasizing that exploiting constituent authority in favor of unconstitutional laws is inappropriate. The court has also stated that the Knesset is committed to a proper legislative process, ensuring adequate participation of Knesset members in the law-making process.
The Proposed Reform:
As the debate rages on about the future of Israel’s democracy, many have taken to the streets to voice their concerns. Amidst the uproar, legal reform has been proposed, containing numerous intricate details that have left many scratching their heads. In order to truly grasp the gravity of the situation and engage in meaningful discourse, a thorough understanding of the reform and its various components is essential.
In the following section, we will delve into the intricacies of the reform, exploring its rules and regulations and examining both the arguments for and against the proposal.
The Judicial Appointment Committee
Currently, according to the Israeli Basic Law: The Judiciary, the committee consists of nine members from various bodies: Two ministers, one of whom is the Minister of Justice; two Knesset members; Three Supreme Court Justices, one of which is the President of the Supreme Court; and two members of the Israeli Bar Association. To decide upon an appointment, the Committee must reach a majority of seven votes, granting de-facto veto power to the politicians and the Judges. Such a structure requires negotiations between the members, ensuring a consensual selection that secures a selection of appropriate candidates, blocking those with radical positions that do not reflect the Israeli population or controlled political ones.
The new proposal, however, destroys the balance and increases the government’s control over the committee, allowing its overhaul. The new proposed law constructs a committee of eleven members: Three ministers, one of whom is the Minister of Justice; Five Knesset members, three being from the Coalition and two from the opposition; Three Supreme Court Justices, one being the President of the Supreme Court (unless appointing for the lower courts, then instead of two Supreme Court Justices there will be two Presidents of the Lower Courts). The special majority for election will be canceled as well, and the Committee will be able to decide on an appointment using a regular majority. Such a change grants a majority to the Politicians in the Committee (three Coalition Members as well as three Ministers), resulting in an overhaul of the Committee that will not be able to prevent the appointment of inappropriate candidates, even if they will result in dependent and political judges.
In addition, the proposal grants the committee the power to elect the President of the Supreme Court through a vote instead of the current practice of granting the position based on seniority. The principle of seniority has been implemented to prevent the politicization of the actions of the Supreme Justices by ensuring that the President of the Court is determined based on seniority rather than political affiliation. However, suppose the proposed committee elects judges with political affiliations. In that case, it may result in the appointment of a politically-biased President who may exercise discretion over the composition of the court hearings in a politically-driven manner.
The proposed change in the appointment process of judges has been advocated for by some, who argue that the current system in Israel allows judges to effectively elect themselves due to their de facto veto power in the appointment committee. Prime Minister Benjamin Netanyahu has claimed that judges are elected by elected representatives in most democracies, such as in the United States, Canada, and New Zealand. However, this claim is misleading and displays populist rhetoric in support of the proposed legislation. In the United States, for instance, federal judges are nominated by the President and must be confirmed by the Senate, which often involves negotiation and compromise to secure the necessary votes. It should also be noted that judges in the United States are appointed through various methods in different jurisdictions, not all of which involve the President.
In this context, it is pertinent to note that nearly all democratic countries globally adopt a system that employs one or more mechanisms to limit the influence of the government in the appointment process. In fact, there are scarcely any democratic states that allow the ruling government to appoint judges without any independent vetting mechanism. Furthermore, Israel’s government structure is exceptional, and its Supreme Court has a unique role that sets it apart from other countries’ judicial systems. Therefore, attempting to directly compare the appointment processes of different countries is a misguided and populist approach.
The Override Clause
The proposed override clause would allow the Knesset to re-enact a law that has been invalidated by the Supreme Court, thereby granting it the power to cancel the cancellation. While it may be beneficial to regulate the Supreme Court’s authority to invalidate laws passed by the Knesset through legislation, the proposed changes undermine the practical content of the judicial review.
Firstly, the proposed changes preclude any court, including the Supreme Court, from discussing or deciding claims related to the validity of Basic Laws or their constituent provisions. In the absence of a constitution and a bill of rights, and since Basic Laws can be constituted and changed by a regular majority, this could harm the balance of the system and the ability to prevent the use of power to override minority rights.
Secondly, the Supreme Court will be the only court able to invalidate a law by the Knesset, and only if it performs a fundamental contradiction and an express provision of a basic law. The decision must be made in a full session and requires a majority vote of 12 out of 15 judges. This wording could de facto cancel the ability to review laws, both due to the higher bar for judicial review does not allow for interpretation and due to the given the current strain on the court’s resources, which can lead to infrequent full sessions, this could reduce the frequency of judicial review. Additionally, instead of analyzing the law in the appropriate court context, the proposed changes limit judicial review to the Supreme Court, which will now potentially have politically motivated judges in it.
Thirdly, the force of a judgment on laws is valid only for the provision of the law discussed in it and will not serve as a precedent in relation to the validity of another law. This may prevent the government’s legal counsel from expressing an opinion that a certain bill is unconstitutional based on the interpretation of similar laws, resulting in the Knesset passing harmful legislation with greater ease and frequency.
Lastly, if the Supreme Court invalidates a law passed by the Knesset, the Knesset can re-enact the same law for a limited time, with the support of a majority of 61 Knesset members. However, if the Supreme Court invalidates the law unanimously, the Knesset can only activate the override clause in the following Knesset rather than immediately. It is worth noting that in a full session of 15 judges, it is unlikely that a unanimous vote will be reached, especially if politically motivated judges are appointed.
These proposed changes, therefore, undermine the practical content of the judicial review and threaten the balance of power between the Knesset and the judiciary.
Government Legal Advisors
In Israel, government lawyers are typically civil servants who are appointed through public tenders. The legal service within each government department is supervised by a ministerial legal adviser, who is answerable to the attorney general of Israel. The attorney general, also a civil servant appointed by a government decision, serves both as the directing ministerial to the legal advisors and as heads the professional legal service within the Ministry of Justice and is responsible for directing the national criminal prosecution apparatus and the state attorney. Moreover, the attorney general oversees the representation of the state before international bodies and prepares drafts for government-initiated legislation.
Due to the professional appointment process and character of government legal advisers, they consider the general public, rather than individual government ministers, to be their ultimate clients. They are also viewed as legal “gatekeepers” entrusted with upholding the rule of law across the executive branch while promoting government policy. However, Israeli law currently does not regulate the powers and status of government legal advisers.
The Supreme Court has attempted to fill this gap by affirming that a legal opinion provided by a government legal adviser is binding. However, throughout the decades, government committees and a public committee have concluded that the government has the authority to deviate from the Attorney General’s legal opinion if it disagrees with it.
To address this issue, the proposed legal reform seeks to clarify the status of government legal advisers in Israeli law. Under the reform, legal advice provided by legal advisers would be considered an opinion only, not binding on the government. Furthermore, the government and its ministers would have the option to be represented in court by either a government legal adviser or a private lawyer. The proposed change also allows ministers to choose their own legal advisers, which aims to balance the government’s position with the public interest and the law.
Supporters of this change argue that the legal opinions of government legal advisors can impede ministerial agendas and reforms, as they are currently considered binding. Additionally, the Attorney General’s role in representing the state in court can result in legal advisors advocating for positions contrary to their office’s stance.
Yet, the proposed changes to make legal advisors political appointees will damage the rule of law by undermining their independence and turning them into minister servants rather than the public. As legal advisors currently act as “internal brakes” of the government, harming their independence could harm good governance, consistency of legal advice, public trust in the government, and effectiveness of the civil service. The change also shows a broader process of politicization of the civil service and a threat to the independence of criminal prosecution. Overall, it attempts to remove the government’s subordination to the rule of law, constitutional principles, and human rights.
It is worth noting that the matter of separating the role of the Attorney General from the position of Legal Advisor of the Government has been the subject of ongoing discourse and has been posited to yield favorable results. Regrettably, such a prospect is not presently under consideration, as attention is exclusively directed toward the damage to the independence of legal advisors.
The Reasonability Clause
The reasonability clause is an important component of judicial review that enables the Judiciary to assess and invalidate government and parliamentary actions. This clause requires the court to determine whether all relevant factors were considered in the decision-making process and if the decision was made with due regard to these factors. The court is generally reluctant to interfere with the government’s decision. It presumes that government officials have acted legally and with reasonable discretion unless the decision is deemed “extremely unreasonable.”
The proposed reform seeks to abolish the reasonability clause, depriving the Supreme Court judges of the power to invalidate government and subordinate authorities’ decisions based on the “extremely unreasonable” standard. It is evident from the review of past judgments that the use of this clause has been judicious and reserved only for cases that demonstrate improper conduct by the administration.
Those supporting the reform contend that the reasonability clause is too vague, leading to uncertainty about how courts will interpret and evaluate decisions. They also argue that the courts misused the clause to interfere unjustly with policy-making. However, the clause’s underlying principles are clear, such as whether an authority has given excessive weight to one consideration to the detriment of public interest and the existence of a “probability complex,” acknowledging the existence of several legal ways to approach a matter. The decision-making process must be based on the “reasonable public servant” standard.
Observations/Analysis
The proposed reform undermines the essential checks and balances necessary to prevent extreme policies, laws, and decisions from being implemented. Furthermore, individuals whose rights are affected by such measures will have no recourse for appeal.
This is the first installment of a two-part feature. In Part 1, I have extensively described Israel’s governmental structure and the proposed reform. In Part 2, I will delve into the events that have taken place since the night of March 26, 2023.
Yael Iosilevich is a law student in the Buchmann Faculty of Law at Tel Aviv University and JURIST’s Staff Correspondent in Israel.
