The constitutional equivalent to 'a revolution with tanks'

Ex-chief justice Barak: Government’s judicial reform plan ‘will strangle democracy’

Other ex-justices, legal figures warn Levin’s proposals a foundational threat to Israel; says one: ‘Nothing in the literature to enable such a country to be considered a democracy’

Former Supreme Court president Aharon Barak in Jerusalem, December 8, 2019. (Yonatan Sindel/Flash90)
Former Supreme Court president Aharon Barak in Jerusalem, December 8, 2019. (Yonatan Sindel/Flash90)

Several of Israel’s most respected judicial figures, led by the renowned former chief justice Aharon Barak, warned Friday against the judicial overhaul announced this week by Justice Minister Yariv Levin, saying it represented a grave threat to Israel’s democratic character and the rights of minorities.

The intended changes set out by Levin at a press conference in the Knesset on Wednesday would drastically limit the authority of the High Court of Justice to block legislation and government decisions deemed discriminatory and/or undemocratic, give the government control over judicial selection, and eliminate ministry legal advisers appointed by the attorney general.

Critics have warned that the overhaul, which Israel’s new hard-right coalition has said it will prioritize, would remove the judiciary’s role as the only effective check on the power of the ruling majority. Proponents argue that court rulings overturning legislation or government decisions subvert the will of Israeli voters.

Former Supreme Court president Barak, in comments from a Kan interview to be aired Saturday night, said that Levin, a loyalist of Prime Minister Benjamin Netanyahu, “has collected all the bad proposals made over the years and connected them into a sort of chain that will strangle Israeli democracy.”

Barak is Israel’s most renowned legal figure — who joined the Supreme Court in 1978 and was its president from 1995-2006, having previously served as attorney general — and is deplored by critics such as Levin as the father of the court’s judicial activism. He told Kan that in the context of a constitutional overhaul, “there is nothing worse” than Levin’s proposals, comparing them to “a revolution with tanks.”

In excerpts from a separate interview with Channel 12, also to air Saturday, Barak said the plan was “a war against democracy.”

Former attorney general and vice president of the Supreme Court Elyakim Rubinstein, speaking at a conference of the Movement for Quality Government, said: “I’m not sleeping at night. This is not just a figure of speech. I am truly anxious about the character of the country.”

Former Supreme Court judge Elyakim Rubinstein at his home in Jerusalem, February 6, 2022 (Yonatan Sindel/Flash90)

Rubinstein said existing court authority to review government decisions provides protection for the weak “against arbitrary decisions, and must not be canceled,” while warning that turning legal advisers into a minister’s personal appointment will politicize public service.

The judicial system “has served Israel reliably,” said Rubinstein. “Of course, no system is free of faults. There are various faults. But what has been done for years now is brainwashing against that which was meticulously built” and “this has unfortunately reached vast swaths of the public.”

Yet another former Supreme Court justice and former attorney general Menachem Mazuz told the same conference: “I don’t know of anything in the literature of political science that will enable a country [with a separation of powers as delineated by Levin’s plan] to be considered a democracy.”

Proponents of radical judicial reform have often complained of the courts’ substantial powers to strike down legislation and curb an elected government’s desired policies, pointing to various aspects of other countries’ systems to argue the Israeli court judicial system’s power is uniquely vast.

Mazuz rejected such comparisons.

“The attempt to point to arrangements in other countries is in my opinion unfounded. It’s a sort of cherry-picking of bad ideas from various countries,” he said, adding that “Israel is probably the only free democratic country without true systems of division of power, with checks and balances.”

“We don’t have a sturdy constitution that sets out the authorities of government and parliament, and we don’t have two houses of parliament that balance each other — only a Knesset that is effectively controlled by the government.

Then-Supreme Court justice Menachem Mazuz, at the court on July 14, 2016. (Flash90)

“We don’t have a federal government that divides power between central and local leadership,” Mazuz continued. “We don’t have region-based elections that give independent power to public representatives… We don’t even have a culture of leadership of things that are ‘not done.'”

Mazuz maintained that “in such a reality, effectively in Israel the only body that can rein in a tyranny of the majority is the judicial system. This restrictive power, they want to annul.

“All the [current] initiatives and reforms are intended to cancel, erase, weaken and eradicate the components of the only restrictive power that currently exists on government,” he said. “The result will be a nation without true separation of powers, without checks and balances, a country that effectively has only one authority — the government — which controls the Knesset and indirectly that judicial system.”

Head of the Israel Bar Association Avi Himi told the summit that two years after the attack on the US Capitol, Israel is “seeing an attack on the Israeli Capitol — on the court.”

Himi argued that “the public did not vote for changing the governmental regime, for crushing the courts and for tyranny.

“There are no liberal countries without judicial oversight and without limits on the power of the regime,” he said.

Himi vowed to stand by the justice system, saying that “if the fortress of the court falls, there is no more guarantee for democracy.”

Justice Minister Yariv Levin holds a press conference unveiling his plans to overhaul Israel’s judicial system, at the Knesset on January 4, 2023. (Olivier Fitoussi/Flash90)

Levin, setting out what he said was the “first stage” of the judicial overhaul, specified change in four core areas: Restricting the High Court’s capacity to strike down laws and government decisions, by requiring a panel of all the court’s 15 judges and a “special majority” to do so, and including an “override clause” enabling the Knesset to re-legislate such laws; changing the process for choosing judges, to give the government of the day effective control of the selection panel; preventing the court from using a test of “reasonableness” against which to judge legislation and government decisions; allowing ministers to appoint their own legal advisers, instead of getting counsel from advisers operating under the Justice Ministry aegis.

On Wednesday, opposition leader Yair Lapid and other opposition figures warned of the destruction of Israel’s government structure if Levin’s proposals become law.

Coalition lawmakers, by contrast, praised Levin’s announcement, arguing the reforms were necessary to restore the public’s trust in the courts and create a more balanced relationship between the three branches of governance.

“What Yariv Levin presented… is not a legal reform, it is a threat. They threaten to destroy the entire constitutional structure of the State of Israel,” Lapid said.

National Unity party MK Gideon Sa’ar, who until last week occupied Levin’s seat as justice minister, said Levin’s plan to curb the judiciary’s authority betrays the ideals of Likud founder Menachem Begin, who Levin name-checked at the start of his speech.

“There is no doubt that Menachem Begin would have rejected each of the sections of the plan to change the regime in Israel,” Sa’ar said.

National Unity’s Gideon Sa’ar attends the Maariv conference in Tel Aviv, October 24, 2022. (Avshalom Sassoni/Flash90)

Sa’ar, a former senior Likud member who broke with Prime Minister Benjamin Netanyahu in 2019, wrote that Begin’s “true disciples have the duty to fight it. And so I will.”

Labor party leader Merav Michaeli accused the coalition of behaving like a “mafia” and added: “Right-wing voters, this is not what you voted for, not for them taking away the protection that the Supreme Court gives you.”

“Bibi, you don’t have the legitimacy to dismantle the Israeli government,” said Benny Gantz, head of the National Unity party, referring to Netanyahu by his nickname.

“This isn’t a reform – it’s a political coup,” Gantz said.

Party leaders in Netanyahu’s right-religious bloc hailed Levin’s proposals, with Finance Minister Bezalel Smotrich “blessing” the “restart of the judicial system.”

Smotrich, the leader of the far-right Religious Zionism party, presented a similar plan during his election campaign.

“You all know that this is what [Israeli voters] declared. We have a full mandate to increase the Israeli public’s faith in the judicial system, to strengthen Israel as a Jewish and democratic state,” Smotrich said.

Religious Zionism party head Bezalel Smotrich leads a faction meeting at the Knesset in Jerusalem, January 2, 2023. (Yonatan Sindel/Flash90)

“The nation chose to fix the judicial system and our 64 mandates chose to carry it out,” said Otzma Yehudit party leader Itamar Ben Gvir. “I congratulate my friend Justice Minister Yariv Levin who is advancing the reform that will end the politicization of the judicial system.”

“It’s an important step for democracy and the rule of the people,” the far-right lawmaker said.

United Torah Judaism MK Moshe Gafni congratulated Levin for his planned reforms, accusing the High Court of ruling against certain sectors in recent years, “specifically against the Haredi community.”

Incoming Prime Minister Benjamin Netanyahu speaks with incoming Justice Minister Yariv Levin during a vote for the new Knesset speaker in the Knesset on December 13, 2022. (Yonatan Sindel/Flash90)

Netanyahu, who is on trial for corruption, argued earlier Wednesday that the judicial overhaul plan would “create balance” between Israel’s courts, the cabinet and the Knesset.

“We will revise the way we govern. We’ll take steps that strengthen personal security throughout the state. We’ll start by enacting reforms that will ensure the proper balance between the three branches of government,” Netanyahu said.

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