2023 Israeli Judicial Reform | |
---|---|
25th Knesset | |
Considered by | Knesset |
Related legislation | |
Basic Law: The Judiciary | |
Status: Pending |
The 2023 Israeli judicial reform is a proposed series of changes to the Judiciary of Israel put forward by Deputy Prime Minister and Minister of Justice Yariv Levin. It seeks to curb the judiciary's influence over lawmaking and public policy by limiting the Supreme Court's power to exercise judicial review and increasing governmental influence over judicial appointments. If adopted, the reform would grant the Knesset the power to override supreme court rulings by a simple majority, prohibit the court from ruling on the constitutionality of certain laws and regulations, and change the makeup of the Judicial Selection Committee so that a majority of its members are appointed by the government.[1][2]
The reform is promoted by Prime Minister Benjamin Netanyahu and his right-wing allies, who argue it is a necessary step to strike balance between democratically elected legislators and an activist judiciary that selects its own members and wields undue influence over public policy.[1][3][4][5][6][7]
The proposed reform has sparked significant backlash both inside and outside of Israel. Opposition leaders and activists accused the government of undermining established norms of checks and balances and attempting to seize absolute power, with some even arguing the reform amounts to an attempt at regime change.[8][9]
Anti-government protests have erupted in Israel shortly after the reform's introduction, as did significant concern among some in the international community.[9][10]
Background
Israeli Supreme Court and Judicial review
Under Israel's current constitutional framework, all legislation, government orders, and administrative actions of state bodies are subject to judicial review by the Supreme Court of Israel, which has the power to strike down legislation and reverse executive decisions it determines to be in violation of Israel's Basic Laws.[3][11]
The exercise of these powers by the court has often sparked controversy, usually among right-wing politicians and their supporters. Many of the court's rulings, particularly those limiting Israeli settlement expansion in parts of the occupied West Bank, as well as those affecting ultra-Orthodox autonomy and way of life have sparked resentment among Religious Zionist and ultra-Orthodox politicians, many of whom have accused the court of engaging in judicial activism in favor of left-wing causes.[1][12]
2019-2022 Israeli political crisis and 2022 legislative election
Within the context of the 2019–2022 Israeli political crisis, the 2022 Israeli legislative election was the fifth Knesset election in nearly four years, as no party had been able to form a stable coalition government since 2019.[13][14]
In the 2022 legislative election, the right-wing bloc won a majority of seats in the Knesset, with far-right elements such as the Religious Zionist Party making record-braking gains.
Following the election, Likud leader and former longtime Prime Minister Benjamin Netanyahu formed the thirty-seventh government of Israel, assigning many powerful positions in the new government to previously marginalized far-right politicians who had long advocated policies that conflicted with many of the supreme court's precedents and have sought to curtail its powers. Among the incoming government's official policy guidelines was a commitment to judicial reform. [12][15][16][17]
Content
Judicial Selection
According to the ammendments proposed to the Judiciary Basic Law by Justice Minister, Yariv Levin, the Judicial Selection Committee's composition will be changed to give greater weight to the legislative and executive branches of government. The Committee will consist of eleven members, namely the Minister of Justice who will serve as the Committee Chairman, two Ministers designated by the government, the Chairman of the Knesset Constitution, Law and Justice Committee, the Chairman of the Knesset State Control Committee, the Chairman of the Knesset Committee, the President of the Supreme Court, two other judges of the Supreme Court who will be chosen from their fellow judges, and two public representative chosen by the Minister of Justice, one of them being a lawyer.[18]
Currently, the Committee is composed of nine members. Three of them are Supreme Court judges, two are representatives of the Bar Association, two are Knesset members and two are ministers. In this composition, members that are not publicly elected officials – the judges and lawyers – have a majority in the Committee, and it is impossible to appoint a judge of who they do not approve to any judicature. Furthermore, the Supreme Court's representatives generally vote in a coordinated manner, and this causes the judiciary's representatives to negotiate with the other Committee members as one unit, with increased negotiating power.[19]
Comparatively, Israeli judicial selection is exceptional when contrasted with other democratic countries. A 2019 study of judicial appointments to constitutional courts of in the 36 OECD countries (supreme courts or constitutional courts) found that 24 out of 36 countries surveyed appoint their judges in a system that grants the power to elected officials exclusively. For example, in the United States, supreme court judges are appointed by the president, with the confirmation of the Senate; in Germany, constitutional court judges are appointed by both chambers of the legislature; in France, the judges of the constitutional council are appointed by the President and both houses of representatives in equal proportion, and alongside them serve former state presidents; in Japan, the selection is controlled by the government subject to ratification through a referendum. This system of exclusive appointment of judges by the elected officials is common to Canada, Australia, New Zealand, Belgium, Switzerland, Austria, Ireland, the Netherlands, Denmark, Sweden, Iceland, Finland, Norway and more. It must be stated that in Israel, such a system was used during the state's early years and that the judges that established the Supreme Court were appointed by the government with the Knesset's approval.
Only four OECD member states, besides Israel, appoint their constitutional court judges without giving the elected officials the ability to appoint the judges: Turkey, Greece, the UK and Luxembourg. However, the UK and Luxembourg are distinct from Israel and most other states in that their judges cannot void parliament's laws, and that the supremacy of the public's values are attained by legislative supremacy. From this, we see that of the 36 OECD countries, Israel's sole companions in giving a veto to non-elected officials over judicial appointed to the highest tribunal authorized to strike down parliament's laws, are Greece and Turkey.
Of the 50 states that comprise the United States, in 22 states, the supreme court judges are elected directed by voting ballot; in another 15 states, the appointments are ratified in a direct vote; four state elect their judges through the public officials and eight states appoint by committees in which the majority of the members are appointed by elected officials.[20]
Constitutional Review
This reform will for the first time enshrine the Supreme Court's power of judicial review, while setting out its conditions. As of now, there is no law granting the Court the power to review or strike down limitation. Rather, the Court gave itself that power in the 1995 Mizrahi Bank decision, following the 1992 passing of the Human Dignity and Liberty Basic Law.
According to the proposal, regular laws that contradict Basic Laws are not automatically voided and that only the Supreme Court, with a full quorum of all its judges, excluding those precluded from participating for over 30 days from the day that the matter is to be decided, can preside over the law's nullification. This is in order to guarantee a comprehensive discussion with the full range of views in the Supreme Court, as well as the prevent the discussion from being influenced the haphazard nature of the panel. It is further proposed that the majority needed to nullify a law is a majority of eighty percent of the total judges, as part of the understanding that the nullification of the democratic public decision is an extremely exceptional event, and if several judges doubt whether to nullify the law, the democratic choice of the people through their elected officials must stand.
The proposed legislation recognizes the Basic Laws as Israel's supreme legal norms. As such, the Court derives its power of judicial review from the Basic Laws. This means that the Court cannot review or strike down the Basic Laws themselves. The proposal sets out the complete supremacy of the Basic Laws and denies judicial review over them, in order to guarantee the Supreme Court's subjection to the rule of name and to the source of democratic authority. This is similar to the majority of Western countries in which there is no judicial review over constitutional norms.[21]
Override Clause
This Basic Law establishes an override clause by which the Knesset can reject the interpretation given by the Supreme Court to the Basic Laws or to the proper balance between values or interests, and to override a Supreme Court decision nullifying a law. According to the proposal, the Knesset will be able to, under specific conditions, override a judicial decision nullifying a law by means of the override clause. The basic concept that stands behind the override clause is not to exempt the Knesset from its commitments to constitutional values, but rather to give the legislator the ability to decide differently than the court as to the proper balance between values, and to the proportionality in a clash between them.
It is proposed that should the Supreme Court nullify a law in full consensus of all judges, the Knesset shall not be able to pass an override law during its term. However, if the Supreme Court decision nullifying primary legislation was not taken in full consensus, it is proposed to allow the Knesset to override the Supreme Court decision nullifying the law with a majority of 61 Knesset members, as long as the law states explicitly that the law will be valid notwithstanding the Supreme Court's ruling. The override will remain valid for the term of the next Knesset, which may review it anew. As such, it is stated that the force of the override is limited to four years or until the end of the first year of the term of a new Knesset after the Knesset that passed the override law, according to the later event. This override model, in which there is no a priori override, allows a proper and useful dialogue between the branches, and for the Knesset to see the Court's detailed ruling before taking the exceptional step of override.
It is further proposed that the Knesset will be able to override the judgement to nullify a law given in full consensus. However, this is on condition that the Knesset that passes the override is a different Knesset than that which passed the nullified law, therefore expressing two Knessets' support for a different value framework than that of the Supreme Court. The fact that the public expresses its positions by means of general selections, that the matter pertains to a value judgement of two Knesset and that the negative incentive of immediate legislation is eliminated, justifies returning the final decision to the people and its representatives. In such a case, as well as in a case when a regular override is passed by two Knessets, the override will be permanent.[22]
Similar clauses exist in Canada, Finland and the Australian state of Victoria.[23]
Abolition of "Unreasonableness" Grounds
The reform will abolish the use of "unreasonableness" as grounds for review of administrative decisions. Although unreasonablness has its origins in British jurisprudence, it has been greatly expanded beyond its original use in Israel. What is unique, in Israeli jurisprudence, is the definition of the grounds of reasonableness.[24] An unreasonable administrative action has been defined as a situation in which the administrative authority failed to give proper weight to all relevant considerations which formed the basis of the administrative decision, and did not properly balance between all the relevant considerations, in accordance with their weight:
"The only way to further the discussion about the substance of reasonableness is to recognize that reasonableness is neither a physical nor a metaphysical concept, but a normative one. Reasonableness means that one identifies the relevant considerations and then balances them according to their weight. Indeed, reasonableness is an evaluative process, not a descriptive process. It is not a concept that is defined by deductive logic. It is not merely rationality. A decision is reasonable if it was made by weighing the necessary considerations, including fundamental values in general and human rights in particular. Nothing is reasonable ‘in itself.’"[25]
This expansive doctrine empowers the Supreme Court to strike down almost any administrative decision, even if it was taken by due legal authority. For example, the doctrine has been cited to order the Prime Minister to fire minister, or to even decide who can serve as Prime Minister.[26]
In an interview in Haaretz, former Supreme Court Justice Moshe Landau criticized the use of th unreasonableness doctrine:
"The justices in the older court did not set themselves up as the teachers of the generation. We did not think that our task was to teach the public fundamental or deep values of private or public morality. This doesn't mean that we didn't pay attention to values. This doesn't mean that we didn't make value judgements. But we understood the limitations of the Court's jurisdiction. We made sure that what we ruled on regarding values flowed out of the issue brought before us [...]
The judge is not the teacher of the generation and is not a philosopher-king. His task is much more modest: to be a faithful interpreter of the law. Of the public's will as expressed by the Knesset, as representative of the public. Therefore, I believe that the judge's wisdom requires him to be cautious, sensitive, with broad discretion and without hubris."''[27]
Status of the Attorney-General
According to the Government Basic Law Amendment proposed by Knesset Member Simcha Rothman, the government and ministers will be authorized to determine its legal position in any matter. Futhermore, they will be entitled to accept or reject the Attorney-General's advice. Currently, the Attorney-General's position is considered binding despite having no explicit basis in law.
The government will also be entitled to determine its position that will be presented in court. The government will be entitled to private representation should the Attorney-General refuse to represent its position. Currently, if the Attorney-General refuses to defend the government's position or presents another position, the government has no legal recourse.[28]
the position of binding advice and representational monopoly in Israel is exceptional and even unique by global standards. As Dr. Eitan Levontin describes, "there is no such thing, to the best of my understanding, in any other place. The legal situation in Israel is not a minority opinion, but rather a single opinion, and it seems to me that a chasm – not just a disagreement – lies between it and the legal situation in any comparable country." By contrast, in the UK, the US, Canada and Germany, the AG – or the parallel figure – is a political role similar to the minister, and in some countries is actually a government minister. As such, they have no power to bind the government to their positions; the government can act in oppositions to their positions; the government is authorized to dictate to the AG the position to present before courts; and he is forbidden to put together legal opinions absent government request.[29] [30]
Impact
Israeli Supreme Court
Under Construction
Law of Return
Under construction
Civil rights
Under construction
Reactions
Domestic
The government's proposed reform of the judicial system has sparked intense controversy in Israel. Opposition leaders, activists, and prominent figures in the judiciary have harshly criticized the proposed changes, arguing they will undermine judicial independence and effectively grant the government unchecked power. They also accused Prime Minister Benjamin Netanyahu of seeking to weaken the judiciary due to his ongoing corruption trial.[8][31]
Opposition Leader Yair Lapid has described the reform as a "unilateral revolution against the system of government in Israel" and urged his supporters to take to the streets to protest against it. National Unity Party leader Benny Gantz said the reform would render Israel "democratically disabled" and urged his supporters to "go out en masse and to demonstrate" and to "make the country tremble" [8][3][31] Chief Justice of the Supreme Court of Israel Ester Hayut said the reform would "deal a fatal blow" to judicial independence and "deny the court the possibility to strike down laws that disproportionately harm basic constitutional rights" Attorney General of Israel Gali Baharav-Miara warned that the reform would "push democratic values to a corner"[32]
Protests
On 14 January 2023, over 80,000 Israelis turned out in Tel Aviv to protest against the proposed changes to overhaul the judicial system. Israel's center and left-wing opposition parties organized the protests with grass roots activists. The protests were cited as examples of the political polarization that has been growing in Israel and has increased during the sixth tenure of Netanyahu as Israeli Prime Minister. Thousands more protested in other locations such as Jerusalem and Haifa[1][33]
International
On January 29, 2023, American legal scholar Richard A. Epstein co-authored an op-ed in the Wall Street Journal in support of the reforms and their economic impact.[34]
Status
Under Construction
See also
References
Notes
Citations
- ^ a b c d Kingsley, P. (12 January 2023), "Netanyahu Surges Ahead With Judicial Overhaul, Prompting Fury in Israel", New York Times, retrieved 16 January 2023
- ^ "יריב לוין הציג את הרפורמה של ממשלת נתניהו בתחום המשפטים". N12 (in Hebrew). 4 January 2023. Retrieved 31 January 2023.
- ^ a b c Staff, T. (15 January 2023), "Netanyahu shrugs off protest, says millions of voters demanded judicial overhaul", The Times of Israel, retrieved 16 January 2023
- ^ Shalev, Russell. "With no constitution, an override clause is Israel's only hope". Jerusalem Post. Retrieved 2 February 2023.
- ^ Shalev, Russell. "Judicial Reform is Not Dangerous for Israeli Democracy – it is Essential". Fathom Journal. Retrieved 2 February 2023.
- ^ Kontorovich, Eugene. "Israel's Supreme Court Claims a Veto on Political Appointments". Wall Street Journal. Retrieved 2 February 2023.
- ^ Editorial Board. "Who's Threatening Israeli Democracy?". Wall Street Journal. Retrieved 2 February 2023.
- ^ a b c Berg, R. (5 January 2023), "Israel plan to curb Supreme Court's powers sparks outcry", BBC, retrieved 16 January 2023
- ^ a b Kershner, Isabel; Bergman, Ronen (14 January 2023). "Thousands in Israel Protest Netanyahu's Plans to Limit Courts". The New York Times. ISSN 0362-4331. Retrieved 31 January 2023.
- ^ Berman, Lazar. "As Netanyahu talks Iran, Blinken makes US concerns over judicial shakeup clear". www.timesofisrael.com. Retrieved 1 February 2023.
- ^ "Explained: Netanyahu Government's Plan to Weaken the Justice System". Haaretz. Retrieved 28 January 2023.
- ^ a b "המפלגות החרדיות יתעקשו על פסקת התגברות". ערוץ 7 (in Hebrew). 21 October 2022. Retrieved 28 January 2023.
- ^ Sagalyn, Dan (31 October 2022). "Israel holds fifth election in four years as Netanyahu attempts to regain power". PBS NewsHour. Retrieved 4 November 2022.
- ^ Alsaafin, Linah; Najjar, Farah. "Israel election updates: Netanyahu set for comeback – Exit polls". Al Jazeera. Retrieved 4 November 2022.
- ^ Picheta, R., Gold, H., Tal, A. (29 December 2022). "Benjamin Netanyahu sworn in as leader of Israel's likely most right-wing government ever". CNN. Retrieved 30 December 2022.
- ^ Rubin, Shira (19 January 2023). "Far-right Israeli government sworn in amid surge of resistance". The Washington Post. Retrieved 30 January 2023.
- ^ Keller-Lynn, Carrie; Bachner, Michael. "Judicial reform, boosting Jewish identity: The new coalition's policy guidelines". www.timesofisrael.com. Retrieved 30 January 2023.
- ^ "Judiciary Basic Law Amendments (Legal Reforms)". D'yoma. Retrieved 1 February 2023.
- ^ "Judiciary Basic Law Amendments (Legal Reforms)". D'yoma. Retrieved 1 February 2023.
- ^ Shai Nitzan, Cohen; Nataf, Shimon; Bakshi, Aviad. "Selecting Judges to Constitutional Courts – a Comparative Study". Retrieved 1 February 2023.
- ^ "Judiciary Basic Law Amendments (Legal Reforms)". D'yoma. Retrieved 1 February 2023.
- ^ "Judiciary Basic Law Amendments (Legal Reforms)". D'yoma. Retrieved 1 February 2023.
- ^ Sommer, Hillel (November 2018). "Panacea or Poison Pill? Revisiting the Override Mechanism". חוקים. 12.
- ^ Gutman, Matan. "Appointment and Removal of Senior Executive Officials in Israel". Adminlaw Blog. Retrieved 1 February 2023.
- ^ Barak, Aharon (2002). "oreword: A Judge on Judging: The Role of a Supreme Court in a Democracy". Harvard Law Review: 145-146.
- ^ David M., Weinberg. "Israel's Supreme Court needs democratic checks on its power". Israel Hayom. Retrieved 2 February 2023.
- ^ Shavit, Ari. "State on the Titanic: An Interview with Moshe Landau". Haaretz. Retrieved 2 February 2023.
- ^ "Amendment to Government Basic Law" (PDF). The Knesset. Retrieved 1 February 2023.
- ^ "Amendment to Government Basic Law" (PDF). The Knesset. Retrieved 1 February 2023.
- ^ Bakshi, Aviad. "Legal Advisers and the Government: Analysis and Recommendations" (PDF). Kohelet Policy Forum. Retrieved 1 February 2023.
- ^ a b Keller-Lynn, Carrie. "Gantz says judicial reform plan will lead to 'civil war'; urges Israeli masses to take to the streets". www.timesofisrael.com. Retrieved 28 January 2023.
- ^ staff, T. O. I. "Hayut accuses government of launching 'unrestrained attack on the justice system'". www.timesofisrael.com. Retrieved 28 January 2023.
- ^ Kershner, I., Bergman, R. (14 January 2023), "Thousands in Israel Protest Netanyahu's Plans to Limit Courts", New York Times, retrieved 16 January 2023
- ^ Epstein, Richard A.; Raskin, Max (29 January 2023). "Israel's Proposed Judicial Reforms Aren't 'Extreme'". Wall Street Journal. Retrieved 29 January 2023.
Further reading
- Goldenberg, T. (12 January 2023), "President of Israel's Supreme Court attacks judicial changes", The Washington Post, retrieved 16 January 2023
- Rubin, S. (20 December 2022), "Israel's far right targets Law of Return to restrict Jewish immigration", The Washington Post, retrieved 16 January 2023
- Williams, D. (15 January 2023), "Israel's Herzog seeks to avert crisis over judicial shakeup plan", Reuters, retrieved 16 January 2023
- Safadi, A. (15 January 2023), "Netanyahu defiant despite protests against Israel judicial reform", Al Jazeera, retrieved 16 January 2023
- Breuer, E. (16 January 2023), "Bennett: Current proposals for Israeli Judicial reforms are dangerous", The Jerusalem Post, retrieved 16 January 2023
- McGarvey, E. (15 January 2023), "Over 80,000 Israelis protest against Supreme Court reform", BBC, retrieved 16 January 2023
- Starr, M., Breuer, E. (11 January 2023), "What are the next steps in Israel's controversial judicial reforms?", The Jerusalem Post, retrieved 16 January 2023
- Navot, S. (1 November 2022), "Judicial Reform and the Implications for Israeli Democracy", Fathom Journal, retrieved 16 January 2023
- Ofer, A. (1 December 2022), "Judicial Reform is Not Dangerous for Israeli Democracy – it is Essential", Fathom Journal, retrieved 16 January 2023
- Reuters (15 January 2023), "Israel's Herzog warns of "crisis" over judicial reform plan", Yahoo News, retrieved 16 January 2023
- Safian, A. (15 January 2023), "Is Judicial Reform a Threat to Israeli Democracy?", The Algemeiner, retrieved 16 January 2023
- Stern, Y. Z. (6 November 2019), "Assault on Israel's Judicial System: The Angel of History is Watching Us", Israeli Democracy Institute, retrieved 16 January 2023
- Ynet, Reuters (12 January 2023), "Israel's chief justice slams Netanyahu's proposed judicial reform", Y.net, retrieved 16 January 2023
- Press, A. (3 January 2023), "Israel unveils controversial plans to overhaul judicial system", The Guardian, retrieved 16 January 2023
- Union for Reform Judaism (2023), "Reform Jewish Leaders Respond to Israel's Proposed Judicial Reforms", Union for Reform Judaism, retrieved 16 January 2023
- Goldenberg, T. (8 January 2023), "Former top Israeli legal officials oppose judicial reforms", Daily Independent, retrieved 16 January 2023