Transforming the courts: Potential changes to Israel's judiciary

LEGAL AFFAIRS: There may be no viable path to a transformation until the cloud of the Netanyahu trial has passed – which could be one to three years off.

SUPREME COURT justices arrive for a session at the Supreme Court earlier this week. (photo credit: YONATAN SINDEL/FLASH 90)
SUPREME COURT justices arrive for a session at the Supreme Court earlier this week.
(photo credit: YONATAN SINDEL/FLASH 90)
From 2007 until spring 2018, there were attempts by former justice ministers Daniel Friedmann and Ayelet Shaked as well as politicians, such as Gideon Sa’ar, to make major changes to the judiciary.
Prime Minister Benjamin Netanyahu and his predecessor Ehud Olmert limited those moves.
Yet, the issue has continued to evolve and will likely be at the forefront of the coming elections.
Confronted with his January 2020 indictment and his impending February 2021 trial for public corruption, Netanyahu has suddenly become a fan of more radical transformation of the courts and the legal establishment.
In theory, the three camps that favor major changes – Netanyahu (to help with his trial), Sa’ar-Shaked (to deal with settlements, migrants and other ideological issues) and the haredi parties (to deal with religion and state issues) – would finally have the political power to alter the playing field.
But the politics have shifted.
Sa’ar, at least, has committed not to join a government run by Netanyahu.
Predictions are this could block Netanyahu from forming a government.
However, Sa’ar also could not form a government without centrist Yesh Atid, which would likely block a conservative judicial revolution.
Ironically, had Netanyahu supported changes to the courts on ideological grounds, supported by Sa’ar and Shaked, prior to mid-2018, he probably could have pushed them through.
At the time, he sometimes criticized the courts, but was deferential to their authority in the vein of Menachem Begin.
There may be no viable path to a transformation until the cloud of the Netanyahu trial has passed – which could be one to three years off.
His personal goals of passing a retroactive “French Law” that gives him immunity while prime minister and passing a Knesset veto of any High Court of Justice veto of that law are certainly not priorities for the ideologically conservative legal camp.
Nor do many conservatives want to imminently pick a state attorney, or an attorney-general in February 2022, with any particular focus on Netanyahu’s legal issues. They may want a more conservative or limited attorney-general, but this is again more about issues like settlements and migrants, not the prime minister’s concerns about his being prosecuted.
Looking into the post-Netanyahu era, how might Sa’ar, Shaked and those ideologically similar seek to remake the judiciary?
THE IMPORTANT items are: the replacement of six retiring justices between now and October 2023; changing the way High Court justices are chosen; and giving the Knesset a way to override a High Court veto of Knesset laws.
The last item has become an especially hot item in the last month.
Twice the High Court of Justice has confronted the question of whether it can override a Basic Law, laws that have quasi-constitutional status.
The very fact that the High Court is entertaining the possibility of overturning Basic Laws, though all hints the justices dropped implied they would not intervene, infuriated ideological conservatives, who say this is clearly beyond the court’s authority.
The current government’s many changes to the Basic Laws – with the setup of an alternate prime minister role and handcuffing the Knesset from changing that set up with anything less than 70 votes – may fade as the current government fades.
Yet, the High Court will likely rule on the Nation-State Law, declaring it constitutional, but giving it its own interpretation to limit its impact on minority rights.
Ideological conservatives may drop the issue, once the High Court affirms the law.
Those who are more pragmatic may take the win and decide they have achieved some limits on the High Court.
Alternatively, some may push to use the High Court’s interpretation of the law and the idea that it considered vetoing the law as the basis for a new campaign to create a High Court override.
The truth is that even without Netanyahu, Yesh Atid and other possible new groups occupying the Center-Left might support a High Court override that requires 70 MKs or some opposition votes.
Back in spring 2018, Attorney-General Avichai Mandelblit and High Court President Esther Hayut hinted that they would not oppose such a super-majority override.
At the time, the problem was that Shaked’s camp wanted an override based on a 61-MK majority.
She argued that such a majority should be enough since it is enough to pass a Basic Law, whereas regular laws can pass on a majority of even less than 61 MKs.
Mandelblit and Hayut responded that a 61-MK majority is meaningless. Any coalition has such a majority by definition, and overriding the High Court should happen only if the justices stray far enough from the national consensus that 70 or more MKs are ready to override, they said.
In fact, the leader of the progressive judicial revolution, Aharon Barak, has said he would support a 70-MK judicial override if it was passed in parallel with establishing a constitution.
Moderate-conservative former deputy chief justice Elyakim Rubinstein has previously told The Jerusalem Post that the absence of a constitution is the heart of many of the fights between the branches of government.
Whereas many in the Knesset view the High Court as injecting itself into their arena too often, the justices tend to think that the Knesset dumps issues on them by violating its own rules or leaving issues unresolved indefinitely, such as integrating haredim into the IDF.
Besides a Knesset override of the High Court, the other two main issues being considered – appointing conservatives to the High Court and altering how such candidates are selected – could be interconnected.
As long as the Judicial Selection Committee has three High Court justices on it out of nine members and requires a seven-vote consensus, the High Court will be able to veto or at least conduct horse-trading with the political class over its new members.
Shaked once played with the idea of changing the rules so that a bare five-vote majority could select justices.
But since then, the committee’s two Israel Bar Association representatives have swung back into supporting the High Court’s views.
That means that any attempt to remake the High Court over the next few years would require changing the makeup of the panel to make it dominated by more politicians, or moving selection of High Court justices entirely into the Knesset.
Shaked has said this should not be a problem, as it would be similar to the US. Canada and England are also often cited as countries where the parliament has more sway over the courts.
However, former justice Eliahu Mazza has previously told the Post that Canada and England have many more checks on their legislative branches beyond just the courts, which Israel does not have.
Likewise, the US has a Constitution, which means that many policy ideas die before they get to the Supreme Court, or it is fairly easy for the court to nix, them citing the Constitution.
“The court expects the Knesset to weigh the public faith and the public’s interests – like in England – but our nation doesn’t have these concepts. In this country, anything that is not illegal, people will do it,” former justice Dalia Dorner has previously told the Post.
The former justice said, “The Knesset must set some principles which they can’t change even when they want to change them.”
She added, “Our democracy is weak because we have no constitution or even a set of rules.”
In any event, barring Sa’ar reaching a deal with Netanyahu both on forming a government and on passing laws to help Netanyahu with his trial (both of which Sa’ar opposes), a remaking of the judiciary and the legal establishment will probably be put off in the coming years.
Paradoxically, this postponement will happen just as, for very different reasons, the largest majority ever of the political class supports such changes.