Israeli judicial reform: The facts, proposals behind misleading mantras - opinion

When people refer to the judicial reform they are talking about several separate laws. Here’s a short overview of each law by subject.

 SUPREME COURT President Esther Hayut gestures, as then-justice minister Ayelet Shaked looks on and then-finance minister Moshe Kahlon listens during a meeting of the Judicial Selection Committee, in 2018.  (photo credit: HADAS PARUSH/FLASH90)
SUPREME COURT President Esther Hayut gestures, as then-justice minister Ayelet Shaked looks on and then-finance minister Moshe Kahlon listens during a meeting of the Judicial Selection Committee, in 2018.
(photo credit: HADAS PARUSH/FLASH90)

The public discourse around the proposed reform of the justice system is full of mantras: “judges elect themselves,” “courts have limitless powers,” and of course, the classic claim of recent years that the government is combating judicial activism. Claims are often made that the current system has no checks and balances, that the attorney general has overwhelming power or that the Knesset is not empowered enough in the legislative process.

These claims are, at best, an exaggeration. While the reform of course could have benefits, as well as downsides, some minor and some extreme, this type of dialogue causes misinformation at a time when the public deserves to understand the complex legal system, as it is and as it would be.

I’d like to offer a review of the proposed laws that address the current situation, as well as the reform’s possible ramifications, in light of attempts to sway the public through misleading mantras.

When people refer to the judicial reform they are talking about several separate laws that the current government is trying to pass that will alter the legal system and affect the relationship between the judiciary and the executive branches, the people and the courts, and the government and its legal advisers. Here’s a short overview of each law by subject.

Laws about Supreme Court, Knesset checks and balances

  • 1. Override Clause: In the current system, there are regular laws and Basic Laws (like constitutional laws, laws that are more protected from being changed). If a law is unconstitutional, meaning it goes against a value protected in a Basic Law, it can be petitioned in the Supreme Court and either ruled null and void or sent back to the Knesset to fix the issue.
 THE HIGH Court of Justice. (credit: YONATAN SINDEL/FLASH90) THE HIGH Court of Justice. (credit: YONATAN SINDEL/FLASH90)

This happened, for example, when in 2020 the court ruled that the Surrogacy Law hurts gay men’s constitutional right to equality and asked the Knesset to change it in order to reflect equality. This does not happen often and of the 22 laws the court has ever in all its history ruled to be unconstitutional, most dealt with the economy or rights of prisoners.

With the proposed law, the Knesset will be able to overrule any Supreme Court ruling that a law is unconstitutional with a majority of 61. Now, 61 may sound like a lot but it is in fact just the minimum number of MKs needed to form a government, so as long as there is a functional government it would be able to overrule the Supreme Court.

Some examples of rights that are protected in Basic Laws that the court currently protects are privacy, equality, dignity and autonomy, freedom of movement, freedom of speech and the right to demonstrate. In the proposed scenario, the government can enact a law that limits any of these rights, the Supreme Court can rule that it indeed jeopardizes the right, and the government – with no need for any MKs from the opposition – can vote that it is legal anyway (i.e., the same people who passed the law have the final say if it is in line with the state’s constitutional values, even without widespread consent of the elected Knesset representatives).

  • 2. Basic Laws: Currently, the Supreme Court may judicially review Basic Laws but only under two conditions: extreme circumstances and the claim being that the Basic Law goes against the values protected in another Basic Law. For example, when many people petitioned the court saying that Basic Law: the Nation-State of the Jewish People would hurt the constitutionally protected rights of non-Jewish citizens of Israel, the court agreed to thoroughly examine the law and ultimately didn’t cancel it.

With the proposed law, the court would not be able to answer a petition against any Basic Law. A Basic Law can be passed with 61 MKs, which again is just the minimum number of members of the government coalition (not requiring a broader Knesset agreement, also from within the opposition). Therefore, the government could pass any law of constitutional standing and it would have zero judicial reviews.

  • 3. Reasonableness clause: Today if an administrative body (municipality, tax authority, land authority, etc.) makes a decision, affected people may take it to court if they claim it is extremely unreasonable. If the court finds it to be extremely unreasonable, it can undo it or offer proper recourse.

With the proposed law, the court can’t cancel a decision of an administrative body solely on the grounds of extreme unreasonableness. While this empowers the government and its many administrative bodies to act without scrutiny, it also means that they can act extremely unreasonably, which usually is defined as engaging in arbitrary discrimination and affected citizens won’t be able to get recourse from the Court.

Essentially, these changes mean that the government and any future government can pass any law and any group which they might hurt – Arabs, immigrants, people who live in the periphery, doctors, children, LGBTQ+ people, religious people, etc. – won’t be able to take it to Court either because it’s a Basic Law and they won’t be able to petition or because it’s a regular law and the Court’s ruling holds no water because the government can overrule.

What is being argued as restoring checks and balances, in reality, ties the Supreme Court’s hands behind its back at the expense of people’s constitutionally protected rights, taking away the Court’s checks and the Knesset’s balance in favor of the 61 MKs in the government coalition.

Laws about the Supreme Court

  • 4. Judicial Selection Committee: Currently, the committee which votes to appoint Supreme Court justices has nine members: two of the Bar Association, three Supreme Court justices, two members of Knesset and two members of the executive. The legal professionals (judges and lawyers) hold a majority and therefore if they vote together, which they are not legally required to do but often do anyways, they have veto power over the elected officials. This is the core of the issue the proposed law looks to solve.

In the proposed law, the government representatives would instead have the majority. Critics fear this will give way to more extreme, political nominations. On the other hand, supporters feel that the legal professionals have been choosing their own and that the court isn’t representative enough.

Whether the latter is the case or not can be debated; however, it should be noted that shifting the power to the government means that Supreme Court justices will be political nominations as opposed to professional ones based on the field of considerations of the committee’s majority and that the proposed law merely shifts the power from one side to the other without creating balance.

  • 5. A law making the hearings of the committee public: Fairly self-explanatory and while the push for transparency is obvious, there is concern regarding the politicization of the process.
  • 6. A law changing the appointment of the president of the Supreme Court from seniority to government appointment: Again, self-explanatory, the main concern raised here is of politicization of the process and of the role of the president.

Israel's Knesset (credit: OLIVIER FITOUSSI/FLASH90)Israel's Knesset (credit: OLIVIER FITOUSSI/FLASH90)

Laws about the government

  • 7. Legal advisers: The office of the Attorney General is made up of professional appointments, meaning they are appointed by committees based on professional experience and criteria.

With the proposed law, they will be political appointments. Therefore, the legal advice given by the attorney general’s office will be inherently catered to the government’s liking, as opposed to coming from an unbiased party.

It should be noted that in response to claims that the government is run by the attorney general’s office and legal advisers review a wide spectrum of government action, including proposed legislation and beyond, advisers are just that: advisers. The office does not have the legal power to dictate policy and is in fact bound to government policy. Instead, the office alerts the government to legal issues proposed action or laws bring up.

  • 8. There are also laws being proposed that lessen the restrictions on appointing ministers who have previously been indicted or convicted of certain serious crimes, in order to allow specific people in the government to be ministers. Some (even many) people today believe this is necessary so that they can appoint Arye Deri as a minister in spite of his illegal actions.

To those who believe Deri should be a minister – which is a valid belief – I would pose the question: Do you believe it enough to enable anyone in the future, even if convicted of a serious crime in the last number of years, to also be allowed to be appointed? There is a principle in administrative law that no law should be instituted just to serve one specific person, as it will inevitably have vast and long-term consequences.

For those who feel concerned over the proposed changes, even if you believe the justice system needs reforming – whether because the reform strips the court from its ability to offer recourse to citizens arbitrarily discriminated against by government bodies; or because the government would be able to overrule the Supreme Court on laws that hurt people’s constitutionally protected rights; or because the autonomy of the Supreme Court is being shifted to the government; or because the government is loosening the limitations of persons convicted of serious crimes taking office – I have but one suggestion: Exercise your constitutionally protected right to demonstrate, while it’s still protected.

The writer is a recently certified Israeli lawyer who specializes in human rights.