Israel's judicial reforms are a double-edged sword - analysis

The rebalancing of power created by Israel's judicial reform is actually the unbalancing of a sensitive system that already has few checks in place.

 Israel's Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli Knesset in Jerusalem, on January 4, 2023.  (photo credit: OLIVIER FITOUSSI/FLASH90)
Israel's Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli Knesset in Jerusalem, on January 4, 2023.
(photo credit: OLIVIER FITOUSSI/FLASH90)

The judicial reforms proposed by Justice Minister Yariv Levin will rebalance all power into the executive branch, and give whichever political wing is in control of the government inordinate power over its political rivals, legal experts warned in discussions with The Jerusalem Post in previous weeks.

While the Right is currently in power, the Left would eventually inherit the institutional sword forged by the Right, and bring it to bear on its rivals.

The rebalancing of power created by the reform is actually the unbalancing of a sensitive system that already has few checks in place, experts such as senior researcher at IDI Dr. Amir Fuchs warned.

“[Israeli checks and balances] are weak as it is, we don't have bicameral parliament. The checks and balances that we have on the power of the central regime are very weak.”

Amir Fuchs

“[Israeli checks and balances] are weak as it is, we don't have bicameral parliament,” he said. “The checks and balances that we have on the power of the central regime are very weak.”

Unbalancing Israel's weak system of checks and balances

Professor of Law at Harvard, Emeritus Alan Dershowitz noted last week that one of these powers that are supposed to check the executive branch is the High Court of Justice.

 American jurist Alan Dershowitz sits for a photo during a visit to Israel, whose leaders he met to discuss proposed reforms to the country?s Supreme Court, in Tel Aviv, Israel December 8, 2022.  (credit: REUTERS/AMIR COHEN) American jurist Alan Dershowitz sits for a photo during a visit to Israel, whose leaders he met to discuss proposed reforms to the country?s Supreme Court, in Tel Aviv, Israel December 8, 2022. (credit: REUTERS/AMIR COHEN)

Yaniv Roznai, co-director of the Rubenstein Center for Constitutional Challenges at Reichman University, said that the result of passing the whole reform as is would result in a government that has a blank check to do what it wants.

“If the government, the executive will capture the judiciary and will have politicization of the entire judicial process, if it will remove and capture the gatekeepers because they want the legal advisors to be their own people that they will appoint because we will have the override clause with 61 senate members that every coalition has,” said Roznai.

“If the government, the executive will capture the judiciary and will have politicization of the entire judicial process, if it will remove and capture the gatekeepers because they want the legal advisors to be their own people that they will appoint because we will have the override clause with 61 senate members that every coalition has.”

Yaniv Roznai

Fuchs previously explained to the Post that “When you take away the power for judicial review with the override clause when you take away the independence by making the appointments 100% political, they are already today 50% political, but then they will be totally political then. And also some kind of checks that we have the power of the legal advisors and the attorney general. If we make the attorney general just another advocate of the government and not advocate of the state like today, and make it a political figure and make the legal advisor political figures, you have no check whatsoever of the power of the coalition.”

While at the moment no restraints seems like a dream for those seeking to achieve a political agenda, this is only the case in the short-term.

Constitutional Law expert Prof. Barak Medina called such thinking “short-sighted.” 

“They act as if they think that they will be in power from now from now on. Disregarding the possibility that they might once be in the opposition, that ultra-Orthodox or other religious persons might be subject to all kinds of government activities that harm them, and they will not be able to gain the protection of the law,” said Medina.

“They act as if they think that they will be in power from now from now on. Disregarding the possibility that they might once be in the opposition, that ultra-Orthodox or other religious persons might be subject to all kinds of government activities that harm them, and they will not be able to gain the protection of the law.”

Prof. Barak Medina

Medina previously said that there was much intense and negative sentiment toward ultra-Orthodox Jews in Israel, and he proposed a scenario to the Post in which their rights were put on the line, but the courts and the entire legal system was in the control of anti-religious parties.

Dershowitz described the High Court a as counter-majoritarian institution — it protected minorities from the whims of majority rule. He said that this far, the court had done a good job of meeting that mission.

“Today the Israeli Court seems like it's tilted left, but tomorrow it could be tilted right,” said Dershowitz.

The push to put all power into the executive branch wasn’t truly a right-wing idea, Roznai noted.

“What frustrates me most is that these reforms are promoted by allegedly conservative — This is not Conservativeism,” said Roznai. “Conservativism is about limited government. This is just the opposite. This is about creating an absolute government.”

In fact, Dershowitz noted, the roles on limiting the powers of the judiciary were completely reversed in the US.

“The American system is overtly political and efforts in America are very much like efforts in Israel, except it's the Left that's objecting to the Supreme Court and in Israel, it's the Right. You know, in the United States, they want to pack the court, they want to limit its jurisdiction, they want to have term limits or age limits. In Israel, it's the Right that wants to impose override and other kinds of new methods of selecting,” Dershowitz mused.

The limitation of power on government is an important right-wing principle, which is in part founded on the idea that the government is a weapon that can be wielded by anyone.

The Israeli right should consider as it debates judicial reform, that the sword cuts both ways, and with a ruling coalition and unstable governments in recent history, the Right may not hold the hold the hilt tomorrow.