Justice Minister Yariv Levin announced several provisions in his judicial reform proposal on January 4 – a far cry from the most recent version of the overhaul laid out by Prime Minister Benjamin Netanyahu in an interview with Bloomberg on Sunday.
Levin initially proposed restrictions on judicial review, regulating legal advisers, establishing an override clause, canceling the reasonableness doctrine, and changing the Judicial Selection Committee.
With the passing of legislation for the reasonableness standard on July 24, Netanyahu continued his charm offensive on American media, saying he would likely next advance the reform of the Judicial Selection Committee.
“That’s basically what’s left,” Netanyahu told Bloomberg. “Because other things, I think, we should not legislate.”
Netanyahu’s situation assessment came after he told The Wall Street Journal on June 29 that he would drop the override clause. If he is to be believed, the prime minister on Sunday appeared to drop regulating legal advisers and restricting judicial review from the agenda.
Restricting judicial review was one of the most important components of the judicial reform. A bill on judicial review had neared the final stages of completion in early March, which would have prevented the courts from striking down Israel’s quasi-constitutional basic laws and allowed review of regular legislation only with 80% agreement on an expanded bench.
Reformists had hoped to curb the broad power of judicial review, which they argued had been seized by the court in the 1990s constitutional revolution. That particular judicial review bill was doomed never to be revived by Netanyahu’s Journal interview, for it contained a provision for an override clause.
The override clause would have given the Knesset the power to overrule the court when it does strike down legislation – only needing a simple majority of 61 to do so. Netanyahu’s dropping of the clause in late June wasn’t seen by many as a significant change in the reform since it was a mid-tier provision.
More important was the regulation of legal advisers. Coalition members have expressed hostility and clashed with the Attorney-General’s Office and government legal advisers throughout the year. Levin had wanted legal advisers to represent the government opinion rather than constituting a distinct legal assessment. Other coalition members had called for the ability of government officials to seek outside representation and for the legal opinions of the advisers not to be binding.
What's left of the reform?
What does appear to remain in the judicial reform agenda is the reasonableness standard and the Judicial Selection Committee.
The Law to Cancel the Reasonableness Standard restricted judicial review of government administrative decisions by not allowing the common law doctrine to be applied to full government, ministerial, and prime-ministerial decisions. Levin had originally called for the full cancellation of the standard, but it will still apply to civil servants.
On September 12, the law faces a final hurdle – a hearing on petitions calling on the court to strike down the legislation. Despite all the fuss about the first passing of a judicial reform law, Netanyahu called this coalition victory “a relatively minor part of the reform” in his Bloomberg interview.
Judicial appointments are arguably the most important and contentious part of the judicial reform. Many experts and politicians cast the provision as the one that the opposition and coalition could not reach consensus on. Reformists argue that the current process for appointing and promoting judges allows for judges to choose themselves, with a majority voting bloc on the panel with representatives of the Israel Bar Association. Reformists wished to remove the Bar representatives and have mostly elected officials on the committee.
The Judicial Selection Committee bill that reached the Knesset table at the end of March would have given a majority to any ruling coalition. This bill was frozen after mass protests brought the country to a standstill. The bill was not revived during the second judicial reform round, and it appears that it won’t be in the third.
Netanyahu emphasized negotiation and consensus during his Bloomberg interview, and the government clarified afterward that it would seek a broad agreement on the Judicial Selection Committee. A new formula on the panel will likely be drafted.
Opposition groups have been skeptical of Netanyahu’s statements. Politicians said Netanyahu had lied in the past about his agendas, and protest groups said a new Judicial Selection Committee law was another slice in the “salami” method. The Netanyahu government would pass another reform law after the public had chewed and swallowed a more manageable piece of the reform, they said.
Netanyahu did say the Judicial Selection Committee “basically” was what was left, leaving some room for more efforts. But if all that is left is one more piece of legislation, several months of protest and division might end in a drastically small piece of meat for the reformist camp to savor.