The battle over Israel’s judicial reforms

With the banner of democracy being raised on both sides, the debate is likely to end anytime soon.

Supreme Court justices arrive for a hearing in Jerusalem on the appointment of Shas leader Aryeh Deri as a government minister, Jan. 5, 2023. Photo by Yonatan Sindel/Flash90.
Supreme Court justices arrive for a hearing in Jerusalem on the appointment of Shas leader Aryeh Deri as a government minister, Jan. 5, 2023. Photo by Yonatan Sindel/Flash90.
Eran Lerman
Col. (ret.) Dr. Eran Lerman, former deputy director of the National Security Council, is the vice president of the Jerusalem Institute for Strategic Studies.

The debate in Israel over the government’s proposed legal reforms is generating a lot of heat on partisan lines, but little light. Opponents see them as stripping the judiciary of its independence and thus striking a blow to the country’s democracy. Proponents see the reforms as long overdue measures to restrain judicial activism and bring Israel’s judiciary in line with those of other parliamentary democracies.

The four reforms being proposed by Justice Minister Yariv Levin are as follows:

The first would enable the Knesset (with certain reservations) to override Supreme Court rulings striking down laws it had enacted. To date, the court has struck down 22 laws on the grounds that they contradict Israel’s “Basic Laws.” Under Levin’s reform, a supermajority of 12 out of the court’s 15 justices would be required to annul a law, while a simple Knesset majority could then override the decision. The Basic Laws, quasi-constitutional legislation that can only be approved by a majority vote in the Knesset, would not be subject to judicial review at all.

The second would bar the judiciary from countermanding certain executive actions (such as appointments to office) on the grounds of “unreasonability.” The Supreme Court most recently used this “reasonableness” criteria 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 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 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 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 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. 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 the reforms put forward by Levin will be passed, with the first—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 Jan. 21, Netanyahu announced that Deri, the Shas leader, was 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.

Col. (ret.) Dr. Eran Lerman, the former deputy director of Israel’s National Security Council, is the vice president of the Jerusalem Institute for Strategy and Security.

This article was originally published by the Jerusalem Strategic Tribune.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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