Judicial reforms are a 'danger to democracy,' former High Court chief says

Levin announced his legal reform proposal on Wednesday. The plan features several items to provide more legal power to the Knesset and limit the abilities of the High Court.

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

Justice Minister Yariv Levin’s proposed judicial reforms are a “danger to Israeli democracy,” former High Court president Aharon Barak told N12 as he scathingly criticized the items in the proposal.

“If these plans come true, we will have a formal democracy, a democracy with no balance,” Barak said. “In fact, we will have only one authority – the prime minister, because the court will cease to fulfill the normal functions it fulfills in a democratic society. And that’s not democracy.”

"We will have only one authority – the Prime Minister, because the court will cease to fulfill the normal functions it fulfills in a democratic society. And that's not democracy.”

Aharon Barak

Barak also spoke to Kan on Saturday, saying “there is no greater evil than this constitutional revolution, which is parallel to a revolution with tanks,” and that he was ready to face a firing squad to continue his criticisms.

He told Kan in the partially published interview that Levin had “collected all the bad ideas proposed over the years and tied them together into some kind of chain to choke Israeli democracy.”

Levin announced his legal reform proposal on Wednesday. The plan features several items to provide more legal power to the Knesset and limit the abilities of the High Court.

In the plan, Levin called for the regulation of judicial review, saying that the striking of laws would require a special majority.

 Thousands of protestors gather in Tel Aviv to protest against the new Israeli government and Justice Minister Yariv Levin's plans for judicial reform. A large ''Crime Minister'' banner with Benjamin Netanyahu's face can be seen in the background, January 7, 2023 (credit: TOMER NEUBERG) Thousands of protestors gather in Tel Aviv to protest against the new Israeli government and Justice Minister Yariv Levin's plans for judicial reform. A large ''Crime Minister'' banner with Benjamin Netanyahu's face can be seen in the background, January 7, 2023 (credit: TOMER NEUBERG)

“No more court hearings on Basic Laws,” Levin said on Wednesday. “No more disqualification of Knesset laws without authority. Instead, the court will act within the Basic Laws and will not be above them.”

Levin also proposed an Override Clause, which would allow for the overturning of High Court decisions with a simple majority.

Barak told N12 on Saturday that such a clause would effectively eliminate judicial review.

“Any such judgment can be annulled by the same majority that enacted this law,” said the retired justice. He rejected the idea of majority rule, saying that democracy required a body to reject things such as racist laws.

Barak also rejected comparisons to his own “constitutional revolution,” which calcified judicial review in the Israeli legal system with the passing of the Basic Laws: Freedom of Occupation and Human Dignity and Freedom in 1992.

Barak insisted that he didn’t create a legal revolution, but acted according to the Basic Laws passed by the Knesset, which created review by preventing other laws from contradicting them and established legislative supremacy.

Criticisms joined chorus of former High Court justices

The criticisms joined the chorus of former High Court justices critical of the items in Levin’s reforms. Former High Court vice president Elyakim Rubinstein said on Friday at a Movement for Quality Government seminar that the Override Clause was the “politics of the weak.”

Former justice Menachem Mazuz said at the conference that “The result of the Override Clause will be a state without separation of powers  – a state that has only one authority that controls both the Knesset and the legal system.”

According to the plan, the makeup of the Judicial Appointments Committee would also change, adding two more political representatives, giving politicians a majority over legal representatives.

“A hearing for [selecting] judges will be an excellent show, but a terrible way to choose judges,” said Rubinstein. He also criticized Levin’s calls to abolish the reasonableness clause, which Rubinstein said was the basis for helping the weak against arbitrary decisions, and should not be overturned. Levin argued that the clause was highly subjective and an excuse for judges to implement their own political opinions.

The reasonableness clause, a principle that allows for legal recourse against an administration that goes beyond the scope of what a reasonable authority would engage in, and judicial review, are two key legal institutions at the heart of Shas Chairman Arye Deri’s case. Deri was appointed as minister and an amendment to the Basic Laws was passed to allow him to do so despite his criminal sentences.

Levin proposed his reforms the day before Thursday’s hearing on the Deri case.

Barak called this a “scandal” and a “loaded gun,” pointed at the court.

“The reform is not related to this or that case, the timing is not relevant to this or that event,” Levin told N12 on Saturday night, repeating his assertions that the proposal was long in development.

Levin responded to Barak’s rejection of his reforms, saying that he regretted the former justice’s language about violent revolution. The justice minister said that the reform came from the ballots, not from tanks. He said that the discussions for the reforms would be done exhaustively and in a patient manner.