Justice Minister Yariv Levin on Wednesday night released bills that will implement his radical program to transform the judicial system and severely limit the Supreme Court’s power to judicial review of laws and executive actions of the Knesset.
The overhaul of the judicial system will give the government full control over the appointment of judges, including Supreme Court judges; severely limit the High Court of Justice’s ability to strike down legislation; and allow the Knesset to re-enact laws that the court annuls with a majority of just 61 MPs. The government will also be able to appoint a President and Vice President of the Supreme Court who has not previously served on the Supreme Court and may not even have served as a judge in a lower court.
Coalition officials said the government is aiming to have the legislative package in place by the end of March.
The proposals, which Levin partially outlined last week, have drawn fierce opposition from a sizable segment of the public, numerous legal scholars and opposition parties, who argue the overhaul will remove all checks on government power and endanger the rights of minorities and vulnerable elements within the Company. Opposition leader Yair Lapid called it “not legal reform” but “radical regime change”. Former Supreme Court President Aharon Barak likened the proposals to “poison pills” that would turn the country into a “hollow democracy,” leaving citizens with no defense against the loss of their rights, and marking the beginning of the end of the modern state of Israel .
Levin and other supporters of the measure argue in response that over the past two decades the Supreme Court has exceeded its powers and seriously impeded the ability of elected coalitions and ministers to enact government policy. Prime Minister Benjamin Netanyahu, who appointed Levin when his coalition took office on December 29, strongly supports the proposals, saying they would “strengthen democracy”.
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Coalition majority in the selection of the judges
The most important piece of legislation Levin and his office have crafted to achieve his goals is an amendment to the Basic Law: the Judiciary.
Under Levin’s draft law, the Judicial Elections Committee, which is responsible for appointing judges — and also for promotions to higher courts and dismissing judges, if any — will be expanded from nine to 11 members.
Justice Minister Yariv Levin at a hearing of the Knesset Constitutional, Legal and Judiciary Committee, January 11, 2023. (Yonatan Sindel/Flash90)
The panel is made up of three government ministers, including the justice minister, who will chair the committee; three MKs, one of whom is likely, but not certain, a member of the opposition; two public representatives to be elected by the Minister of Justice; and three Justices of the High Court, including the Chief Justice.
This gives the government control of seven of the eleven committee members. A majority of six committee members is required for the election of superior court judges, and only a simple majority for the election of lower court judges.
The legislation also provides for public hearings for High Court nominees, although the committee has the power to appoint the nominee anyway if no such hearing takes place.
Almost no possibility of judicial review
Crucially, the bill sets out the conditions under which the High Court can conduct a judicial review of Knesset legislation.
Although Levin’s constitutional amendment legislates for the first time the court’s right to judicial review, in practice the court’s ability to overturn or amend Knesset laws is severely weakened.
That authority has been derived largely from the passage of the Basic Law: Human Dignity and Liberty in 1992 and the Supreme Court’s landmark Bank-Mizrahi ruling in 1995.
Supreme Court President Esther Hayut and other justices at a Supreme Court hearing on petitions against the appointment of Shas Party leader Aryeh Deri as Minister due to his recent conviction for tax offenses, January 5, 2023. (Yonatan Sindel /Flash90 )
Levin’s draft law specifically states that the courts cannot even hear arguments against Israel’s quasi-constitutional fundamental laws, and any decision by a court that overturns or limits one of the fundamental laws will have no validity.
This clause is inserted in the legislation to prevent the Supreme Court from obstructing it with an immediate judicial review of the new government’s reform package.
The Supreme Court will only be able to overturn the Knesset legislation if a full panel of 15 judges from the court, minus those unable to attend for various reasons, preside over the case. In addition, any decision striking down legislation must win the support of 80% of the panel, ie 12 out of 15 judges when all Supreme Court justices are present.
However, the Knesset will be able to simply re-enact the law for a four-year period with a vote of just 61 MPs – all of whom have majority coalitions – meaning judicial review of Knesset legislation by the Supreme Court will be dramatically curtailed and easily tipped over.
In addition, the Knesset will be able to forestall any court decision to overturn a law by including a “regardless of” clause in the original legislation, stating that the law is immune from judicial review.
Israelis take part in a protest against Prime Minister Benjamin Netanyahu’s new government in Tel Aviv’s Habima Square on January 7, 2023. (Avshalom Sassoni/Flash90)
The Abolition of “Appropriateness”
Levin’s legislation also imposes another critical limitation on the court, namely the removal of the court’s ability to use the “reasonableness” test to determine whether administrative decisions are “reasonable” and made with due regard to all relevant factors.
The Supreme Court has used the principle of proportionality over the years to reverse several key decisions made by governments and local governments, including upholding religious rights, ensuring civilians in the south had adequate protection from rocket fire from Gaza, and canceling highly problematic ones political appointments.
The new government strongly opposes the Court’s application of the reasonableness principle, arguing that it is too amorphous and therefore gives the Court undue authority over government policy.
Appointment of a President and a Vice-President of the Supreme Court
Levin’s bill also does away with the tradition of “seniority,” whereby the judge with the most years on the Supreme Court becomes president. Instead, the President and Vice President are appointed by the Judicial Selection Committee “in the same manner as Supreme Court Justices are appointed.” This would allow the committee to appoint any Supreme Court justice, a junior court justice, or even a private attorney who has never served as a judge but meets the criteria for a Supreme Court appointment.
The measure will give the current administration immediate leverage over the Supreme Court when the current President, Justice Esther Hayut, retires this year.
The President of the Supreme Court has several important powers, including choosing the size and composition of panels in specific cases.
The term of office of a president and vice president of the Supreme Court will also be reduced from seven to six years.
According to a report by Channel 13 News, the law will be submitted to the Knesset by the end of the week and then to the Committee of Ministers for Legislation 21 days later for approval in the first reading of the Knesset plenary.
“We go to the polls, vote, vote, and people we didn’t vote keep voting for us…this isn’t democracy,” Levin said last week during a Knesset news conference.
“These reforms will strengthen the legal system and restore public confidence in it. They will restore order: it will allow legislators to legislate, the government to govern, legal advisers to advise and judges to judge,” said the justice minister.
Opposition leaders have strongly denounced Levin’s proposals, calling them a political coup, while legal experts, including former Supreme Court justices, have warned that the reform package will profoundly undermine democracy.
In an interview with the Times of Israel on Wednesday, former Supreme Court Deputy President Elyakim Rubinstein warned that Levin’s package of reforms could lead to a “democratic dictatorship,” saying it would effectively leave Israel with only one branch of government: the majority coalition.
Opposition leader Lapid, leader of the Yesh Atid party, told Channel 13 News that Levin’s reforms are the “abolition of Israeli democracy,” adding: “What they are doing here today – they are creating a situation where the government controls everything . This is not a democracy.”
Lapid also claimed that hardline advocates of radical judicial reform in the new government are “exploiting the fact that Bibi [Netanyahu] is weak and afraid of his exams” to enforce the measures.