Ex-A-G Mandelblit: Israel in regime revolution, not judicial reform

Israeli system was built with two institutions to protect its liberal democratic nature, the legal advisers and the judicial system, both under threat by the reform.

Attorney-General Avichai Mandelblit  (photo credit: MARC ISRAEL SELLEM)
Attorney-General Avichai Mandelblit
(photo credit: MARC ISRAEL SELLEM)

The government’s proposed judicial overhaul is a revolution, former attorney-general Avichai Mandelblit said Tuesday at the Institute for National Security Studies (INSS) annual conference. He called on the High Court of Justice to strike down legislation that threatened Israel’s liberal democratic system.

“We are experiencing a regime revolution, not really a judicial reform,” Mandelblit said, adding that discourse should not continue until the legislative process is halted. “It is the court’s duty to cancel all acts of legislation that come to cancel the liberal democratic system of government in Israel.”

"We are experiencing a regime revolution, not really a judicial reform."

Avichai Mandelblit

Former Supreme Court president Dorit Beinisch echoed Mandelblit moments later, saying it was “not a judicial reform at all.”

The government was seeking to control all the branches in Israel’s system, she said, adding that if the reform sought to cancel Israel’s democracy, this would be the basis for the courts to interfere.

Mandelblit’s call to cease discourse with judicial reformists comes on the backdrop of a stalled negotiations bid by President Isaac Herzog. Opposition leaders refused to talk with coalition members without the cessation of legislation.

People gather with Israeli flags to protest against the government and the proposed judicial reforms, Tel Aviv, February 18, 2023. (credit: AVSHALOM SASSONI/MAARIV)People gather with Israeli flags to protest against the government and the proposed judicial reforms, Tel Aviv, February 18, 2023. (credit: AVSHALOM SASSONI/MAARIV)

Mandelblit said everyone wanted dialogue between the legislature and the judiciary, and there were things that needed to be changed and discussed, such as an override clause, but the current proposal was not geared toward such improvement.

Beinisch said reforming the judiciary was not a question of being on the Right or Left.

The Israeli system is built with two institutions to protect its liberal democratic nature, the legal advisers and the judicial system, Mandelblit said, and both were under threat by the reform. All the measures would eliminate the independence of the court, he said.

The lack of independence of the court would have an impact in the international arena, Mandelblit said, referring to complementarity. International legal forums are required to defer to the operations of local judiciaries if they are responsible and independent.

According to Beinisch, “It cannot be understated how we would be in a more difficult situation” before the international arena without the court’s independence. She also rejected claims that the High Court of Justice had interfered with military operations, saying it was guiding them in more proper conduct.

Judicial reforms contract Israel's founders and the Declaration of Independence

Mandelblit said the reforms were in contradiction not only with Ze’ev Jabotinsky, Menachem Begin and the Betar movement, but also against the Declaration of Independence. He said perhaps in the past, no one would think the values of the Declaration of Independence would be challenged like they are today. He suggested that its enshrining in a Basic Law was unlikely, perhaps because its values clashed with a regime revolution.

Beinisch said these values were part of the DNA of the state and the basis of the country.

Lacking enshrined basic values was one of the things Mandelblit found lacking in justifications of the reform. He compared the proposed models to those in other states, such as Canada. Citing Irwin Cotler and other Canadian legal experts who expressed concern about the reform, he said Israel did not have a constitution, bicameral parliament, local political devolutions and other institutions to balance what was being proposed.

In a rare interview, Justice Minister Yariv Levin on Tuesday told KAN News the current Israeli model was unique in the world, and it was standard for judges to be appointed by the executive with a Senate process in the US. While some international jurists, such as those in the US, were against the reform, there were many that were supportive, he said.

Levin said there were many good judges and features of the current system, but there were many problems that needed to be addressed, such as legal advisers who did not allow laws to be brought to the Knesset.

Acting now to appoint judges would allow for more diversity of thought and give a chance to get into the position, he said.

"There is not a single conservative judge in the Supreme Court."

Yariv Levin

“There is not a single conservative judge in the Supreme Court,” he told KAN.

Levin dismissed concerns about the impact of the reform, such as limitation of rights and economic damage. Rights were not trampled before the constitutional revolution of justice Aharon Barak in the 1990s, which some reformists assert is a legal period that they are returning to, he said.

He also said the Israeli economy is resilient and would overcome any issues, as it had overcome attacks on it, such as the Boycott, Divestment and Sanctions movement.

Levin said he was not swayed by protests. Polls indicating lack of support for reform should not be taken as the true representation of the support, he said, adding that some polls had given the opposite data to the final 2022 general election results.

“The reform does not belong to the [Prime Minister Benjamin] Netanyahu trial, nor to any other process,” Levin told KAN. “I think you will see that it will strengthen our democracy and the judicial system.”

INSS executive director Manuel Trajtenberg said at the first in-person annual conference of the organization since the coronavirus pandemic that the quick legislative process and polarization was weakening Israel’s system, in which a multifront security situation was exacerbated by focus split on domestic issues.

A chaotic committee meeting ahead of judicial reform vote

The polarization was evident in the high tensions in the Knesset Constitution, Law and Justice Committee on Tuesday, ahead of the Wednesday vote on the legal reform bill limiting judicial review and creating an override clause.

In an argument with committee legal adviser Dr. Gur Bligh, committee chairman Simcha Rothman (Religious Zionist Party) said he was acting like a member of the opposition.

Yesh Atid MK Yoav Segalovitz told Rothman he was mistaken and that Bligh was not his personal adviser.

Rothman later apologized to Bligh.

“The tone and content of the things I said to the committee’s legal adviser were inappropriate, and I apologize to him,” he said. “I have full of appreciation for his work. He really puts in many hours, in the committee room and outside, and he certainly deserves all the respect.”

Labor MK Gilad Kariv attacked Rothman’s general conduct in the committee during all the sessions as disrespectful and megalomaniacal.

The bill discussed on Tuesday would restrict the High Court’s ability to strike down laws to when it had an extended court of 15 in four-fifths majority agreement that the legislation contradicted a Basic Law.

The bill’s override clause would allow a simple Knesset majority to immunize it preemptively from judicial review. Such laws would be exempted from judicial review until a year after the Knesset that implemented the override had retired.

The special committee for amendments to Basic Law: Government was also set to convene on Wednesday morning for its first reading. The committee would confirm the election of Likud MK Ofir Katz as the chairman and discuss an amendment to the Basic Law regarding eligibility for appointment, after it had gone through preliminary reading in the Knesset.