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Analysis

Who heads the court, and 2 other overlooked core components of the judicial overhaul

Levin’s bill remakes terms for choosing High Court president, aims to prevent justices blocking his whole package, allows re-legislation of any law the justices strike down

Justice Minister Yariv Levin in attendance at a hearing of the Knesset Constitution, Law and Justice Committee, January 11, 2023
Justice Minister Yariv Levin in attendance at a hearing of the Knesset Constitution, Law and Justice Committee, January 11, 2023

The planned radical shake-up of Israel’s judicial and legal system introduced by Justice Minister Yariv Levin has been roundly denounced by opponents as an effort to remove all constraints on executive power and remove democratic safeguards from Israel’s system of government.

But there are three aspects of these proposals, outlined in greater detail on Wednesday night with the publication of Levin’s draft legislation, that would have particularly profound consequences for the country.

Changing the terms for choosing the Supreme Court president

The first is the stipulation in this legislation that the president of the Supreme Court, aka the chief justice, will be selected by the (government-controlled) Judicial Selection Committee, instead of the current system in which the justice with the greatest number of years on the court becomes president after the incumbent leaves.

According to the draft bill, however, the court president will not even need to already be a Supreme Court justice, as is currently the case. Indeed, he or she would not even need to have served as a judge on any lower court either.

This is achieved in the legislation by stipulating that the court’s president will be appointed “in the same way Supreme Court judges are elected.” Since regular Supreme Court judges do not need to be appointed from the lower courts, so too under Levin’s reforms, the president could also be selected from outside the benches of those courts.

Supreme Court President Esther Hayut at a hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses, at the Supreme Court in Jerusalem, on January 5, 2023. (Yonatan Sindel/Flash90)

Why is this important?

The Supreme Court president has significant powers that affect the workings of the court. These include choosing the size and composition of the panel for any given case, and the authority to prevent a justice from being on a panel for a particular case if the president believes that justice has a conflict of interests.

The Supreme Court president is also automatically one of the three justices on the Judicial Selection Committee, and has authority over disciplinary proceedings, including those to dismiss a judge.

If, as opponents of Levin’s reforms warn, the new government’s legal overhaul is designed to take control of or radically restrain the court, then the ability to select the president is crucial.

Current Supreme Court President Esther Hayut is due to retire this year, and the ability to determine who will be the next president would give the new government immediate and significant influence.

Protecting Levin’s reform itself from High Court intervention

Another key element of Levin’s reform package is that it is being passed as a Basic Law, or more accurately an amendment to Basic Law: Judiciary, giving it quasi-constitutional status.

This amendment will explicitly stipulate that the Supreme Court in its role as High Court of Justice will be prohibited from even hearing petitions against Basic Laws, and any ruling by the court on Basic Laws will have no validity.

Supreme Court justices arrive for a hearing over the legality of Shas leader Aryeh Deri’s appointment as a minister, at the Supreme Court in Jerusalem on January 5, 2023. (Yonatan Sindel/Flash90)

In his announcement of the broad aspects of the reform plans last week, Levin did not specify that his proposals would be enacted through a Basic Law.

But this stipulation is a logical necessity for the justice minister and the government, since it seeks to prevent the High Court from assessing whether this constitutional amendment itself violates the provisions of Israel’s Basic Laws and its core values, as determined in key state documents such as the Declaration of Independence.

Again, if the idea is to radically rein in the judiciary then this provision is absolutely necessary in order to prevent the High Court from annulling Levin’s legal revolution.

It is important to note, however, that the High Court has partially developed a doctrine for coping with what is known as an “unconstitutional constitutional amendment.” In her decision on the Basic Law: Nation State, Hayut wrote that the only instance where the Knesset’s authority to legislate Basic Laws might be limited is if it revokes “ Israel’s essence as a Jewish and democratic state.”

Although she did not write whether in her opinion the High Court would have the ability to intervene in such a situation, the possibility nevertheless remains open.

Going down this avenue would, however, inevitably lead to a constitutional crisis, bearing in mind Levin’s fierce insistence that the court not involve itself in the country’s constitutional concerns.

Israeli lawmakers Ayman Odeh, center right, Mossi Raz, second from right, and Ofer Cassif, right, march behind a banner reading “This is our home during a protest against Prime Minister Benjamin Netanyahu’s far-right government in Tel Aviv on Saturday, Jan. 7, 2023. (AP/Tsafrir Abayov)

Anything can be re-legislated

Finally, but no less importantly, Levin has insisted throughout the unveiling process of his radical legal shake-up that the principle of judicial review over Knesset legislation will be preserved, albeit in a dramatically constrained manner.

Despite this assertion, written into the draft legislation is a clause that would make a piece of Knesset legislation totally untouchable should a majority of 61 MKs wish it so.

According to the draft bill, the Knesset would not be able to re-legislate in the same Knesset term a law struck down by the High Court by a unanimous decision of a full panel of justices.

But, the legislation specifies, a new Knesset could subsequently re-legislate that law and override the court’s unanimous decision.

In essence, this means that even the extremely narrow conditions under which the High Court can determine a law to be in fundamental violation of the civil rights set out in the Basic Laws can be ultimately be overturned by the will of the Knesset majority.

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