78 retired judges warn against incoming government’s judicial reforms

Justices urge public and Knesset to stand against planned moves they say could endanger democracy, turn Israel into pariah

Supreme Court justices arrive for a hearing at the Supreme Court in Jerusalem, October 6, 2022. (Yonatan Sindel/Flash90)
Supreme Court justices arrive for a hearing at the Supreme Court in Jerusalem, October 6, 2022. (Yonatan Sindel/Flash90)

Dozens of retired judges have signed an open letter warning that legislative moves planned by the incoming government endanger Israel’s democracy, threaten internal damage, and could damage Israel’s moral standing in the eyes of the world, including those of Jewish communities in the Diaspora.

The Tuesday letter, signed by 78 former judges, charged that planned legislation to curb the judiciary will erode citizens’ rights and eliminate the checks and balances on government power.

Among the signatories was former Supreme Court justice Ayala Procaccia, who has been a vocal opponent of the planned reforms, and former attorney general Michael Ben-Yair, who also served on the Supreme Court.

Coalition agreements for the next government have prioritized passing a so-called override clause that would let the Knesset reinstate laws invalidated by the court. In addition, there are plans to revamp the panel that selects judges, giving a majority to the government’s representatives and its appointees; and weaken anti-discrimination laws.

The protest letter was initiated by former Central District Court judge Avraham Yaakov, who said Wednesday that he wanted to be able “to tell my grandchildren what I did in the black December of 2022.”

He told Army Radio that the unprecedented move by former judges — who generally shy from involvement in politics — to issue such a letter was justified because never in the past “could we imagine, in the foreseeable future, the destruction of Israeli democracy.”

Incoming prime minister Benjamin Netanyahu after delivering a speech at the Knesset, December 12, 2022. (Gil Cohen-Magen / AFP)

Yaakov said that passing an override clause — allowing the Knesset to invalidate any High Court of Justice review of legislation — would remove a key obstacle for the political majority to harm minority rights.

While he conceded that “there is no judicial system that doesn’t need adjustment” he urged that such changes be made only after careful consideration.

“I haven’t really heard from all those who want to reform the judicial system what the defects are, what they want to correct, what is wrong with it,” Yaakov said.

The letter likewise highlighted concerns over the override clause, warning that it “spells a violation of the protection provided since the establishment of the state to human rights in law, among them: the right to equality, freedom of speech, freedom of occupation, the right to privacy, etc.”

Regarding the judicial selection panel, the judges cautioned that “incorporating distinct political considerations into the appointment process” will harm the independence of the judicial system,

They also warned against a plan to relegate ministerial legal advisers to “positions of trust,” meaning they can be appointed or removed at will by politicians. Such a move will impact their ability to act as “gatekeepers,” the judges said, and “the result will be that loyalty to the minister will prevail over the law.”

“The independence of the judicial system is essential if it is to balance the other two authorities: the legislative and the executive,” they said.

The justices also took issue with “the intention to deviate from the norms of the rule of law and the purity of morals required of elected officials by appointing as ministers people who have been convicted and others that are under a cloud of criminal suspicion.”

In a round of legislation earlier this week the Knesset passed laws sponsored by incoming coalition parties enabling Shas party leader Aryeh Deri to become a minister despite a recent conviction and suspended sentence. In addition, other bills granted greater control over police to the newly formed National Security Ministry, set to be helmed by far-right Otzma Yehudit leader Itamar Ben Gvir, who has been convicted multiple times for incitement, racism, and terror-related offenses.

Prime minister-designate Benjamin Netanyahu led a bloc of right, religious and far-right parties to victory in the November 1 elections. Critics accuse Netanyahu of stretching the limits of his own ideology to meet far-reaching demands by coalition partners in order to secure their future support in ending his ongoing corruption trial.

Shas party leader MK Aryeh Deri seen during a vote in the Knesset, in Jerusalem, on December 28, 2022. (Olivier Fitoussi/Flash90)

Yaakov told Army Radio that while those who signed the letter did not expect the Knesset to alter its path, “the public needs to know what it is facing.”

“We couldn’t sit back and do nothing,” he said.

Meanwhile, former deputy president of the Supreme Court Elyakim Rubinstein addressed another proposed change the coming government included in some draft coalition agreements — the repeal of a ban on racist Knesset candidates. The clause did not appear in the final, signed deals.

Judge Elyakim Rubinstein Deputy President (Ret.) of Israel’s Supreme Court

Rubinstein said he was “shocked,” and lamented how such a move will be perceived by the rest of the world at a time when Jewish communities are raising the alarm over a rise in global antisemitism.

“We are Jews, and now there is an era of rising antisemitism. They [the international community] will say, ‘The Jews in the past locked the door against racists and now they are opening it,” he told Army Radio.

Rubinstein said he hopes that those who are pushing for the change will “think twice and twice again” before they legislate it.

In their letter, the judges warned that “implementing these steps that violate our values could fundamentally change the moral image of the State of Israel and damage it not only internally but also in the eyes of the world, international institutions and Jewish communities in the Diaspora,” and called on “the incoming government and the public in Israel to stop any move that could harm the rule of law, the foundations of our democratic regime.”

The next government is expected to be sworn in on Thursday.

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