There'd be no protection for Israel's 'core characteristics'

Attorney general: Judicial overhaul plan ‘would give government unrestrained power’

Lashing current process, Gali Baharav-Miara says legislation to limit High Court’s power will ‘fundamentally change the democratic nature of the state’s governance’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney General Gali Baharav Miara at her inauguration ceremony in Jerusalem, February 8, 2022. (Yonatan Sindel/Flash90)
Attorney General Gali Baharav Miara at her inauguration ceremony in Jerusalem, February 8, 2022. (Yonatan Sindel/Flash90)

In a searing position paper issued Thursday, Attorney General Gali Baharav-Miara said the government’s plans to radically overhaul the Israeli legal and judicial system would give the government virtually unrestrained power, without providing any institutional protections for individual rights or for Israel’s democratic character.

And according to a statement by the Attorney General’s Office, Baharav-Miara told Justice Minister Yariv Levin that his proposed legislation would “fundamentally change the democratic nature of the state’s governance.”

Baharav-Miara wrote in her paper that “such a dramatic process” should not be advanced without more thorough consultations and groundwork, a position that will likely complicate Levin’s effort to pass the reforms as government legislation.

Baharav-Miara’s lengthy 120-page legal opinion was drafted following a meeting she held with Levin three weeks ago, in which he asked her to submit her position on his highly controversial and far-reaching legislation within three days.

“Every one of the proposed arrangements raises substantial problems that go to the root of the principle of the separation of powers, judicial independence and the professionalism of the judicial branch, protection of the rights of the individual, the rule of law, and the preservation of proper governance,” wrote the attorney general.

Levin’s proposals would grant the government total control over the appointment of judges, including Supreme Court justices; severely limit the High Court of Justice’s ability to strike down legislation; and allow the Knesset to re-legislate laws the court does manage to annul with a majority of just 61 of the Knesset’s 120 MKs.

Justice Minister Yariv Levin speaks during a constitution committee meeting at the Knesset, the Israeli Parliament in Jerusalem, on January 11, 2023. (Yonatan Sindel/Flash90)

“Adopting the proposed arrangement would lead to a governmental regime in which the executive and legislative branches would have broad and in practice unlimited authority,” Baharav-Miara wrote.

She added that it would leave Israel’s system of government “without any institutional provision” against the improper use of legislation to circumvent judicial review “or to harm the core characteristics of Israel as a Jewish and democratic state.”

She was particularly critical of the proposals to give the government full control over the appointment of judges, saying this would severely harm judicial independence and professionalism.

Levin’s plans for severe restrictions on the High Court’s ability to exercise judicial review over legislation were also strongly criticized by the attorney general.

The “harm to the independence of the judiciary and the status of the judicial branch” would be exacerbated due to Israel’s system of government, in which the judicial branch and its power of judicial review is the only institution of governance with a substantial role in restraining the power of the political majority, she argued.

The attorney general went on to point out that in Israel’s democratic system, the government controls all parliament’s legislative proceedings through the coalition majority in Knesset.

From left, ministers Yoav Gallant, Aryeh Deri, Benjamin Netanyahu, Yariv Levin and Eli Cohen in the Knesset on December 29, 2022. (Yonatan Sindel/Flash90)

Finally, she observed that Israel, unlike many other countries, does not have a formal or stable constitution; has no bill of rights; no restrictions on the ability to pass basic laws with quasi-constitutional status; no decentralization of powers through a federal system; no constituency-based elections; is not subject to any international judicial review, such as in Europe with the European Court of Human Rights; and has only a unicameral parliament.

Baharav-Miara also noted that Levin’s proposed legislation does not deal at all with any restrictions on the executive and legislature “but only pushes aside and reduces the place of the judiciary” to review those branches of government.

“In the absence of a broad arrangement of a system of relations between the branches of government, the result is an absence of a mechanism of protection that will guarantee proper procedure, individual rights, the rule of law, and proper governance,” she wrote.

The attorney general said that “such substantial changes to the relationship between the three branches of government” must be carried out “in an organized and considered manner” and “through broad agreement,” adding that the process could not be advanced without more fundamental groundwork and consultations with relevant government officials and the Courts Administration.

This last determination will likely make it difficult for Levin to advance his legislation as a government — rather than a private — bill. A government bill enjoys a quicker and more streamlined process, but it also involves the Justice Ministry’s advisory division on legislation, which would adopt Baharav-Miara’s position and likely significantly delay the legislative process.

Because the attorney general refused to issue her opinion on Levin’s legislation within the extremely narrow three-day window he gave her, the Chairman of the Knesset Constitution, Law and Justice Committee, MK Simcha Rothman (Religious Zionism), has submitted his own similar private bill for which the committee has already begun hearings.

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