ISRAEL AT WAR - DAY 139

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Government gears up to advance smaller parts of overhaul after talks suspended

Coalition likely to push one bill restricting the High Court’s use of the reasonableness doctrine to review gov’t policy, and another curbing ministerial legal advisers’ powers

Jeremy Sharon

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

Prime Minister Benjamin Netanyahu (left) with the architects of the proposed judicial overhaul, Justice Minister Yariv Levin and MK Simcha Rothman (standing) in the Knesset on February 15, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu (left) with the architects of the proposed judicial overhaul, Justice Minister Yariv Levin and MK Simcha Rothman (standing) in the Knesset on February 15, 2023. (Yonatan Sindel/Flash90)

Prime Minister Benjamin Netanyahu promised on Sunday that his government would begin unilaterally advancing legislation to enact key aspects of its effort to overhaul the judiciary, amid a breakdown in negotiations between the coalition and the opposition that were aimed at reaching a compromise on legal reforms.

Netanyahu did not specify which parts of his government’s overarching judicial overhaul program would now be advanced, but several Likud MKs have spoken specifically in recent days about pushing forward with two pieces of legislation — one limiting the ability of the judiciary to review government decisions and appointments through what is known as the reasonableness test, and another limiting the authority and standing of government legal advisers, who frequently trigger right-wing ire by blocking radical ministerial policy initiatives.

Those two bills, while substantive, are much less far-reaching than other central elements of the coalition’s suspended overhaul package. That slew of bills includes ones that would give the governing majority almost complete control over all judicial appointments, drastically constrain the High Court’s capacity to protect basic rights and largely prevent it from serving as a brake on government abuse.

The Kan public broadcaster reported Sunday that Netanyahu told fellow ministers over the weekend that the coalition’s original bill aimed at giving the coalition near-complete control over the Judicial Selection Committee, which is ready for its final readings, would not be passed in its current form.

The heads of the coalition parties are scheduled to meet on Monday to flesh out the details of the legislation the government will advance.

Speaking during Sunday’s cabinet meeting, Netanyahu blamed the opposition for thwarting efforts to reach a compromise and said that the government would accordingly advance reforms by itself, given that it is believed to have the votes in order to do so.

“We will meet this week and begin practical steps. We will execute them in a measured and responsible way in accordance with the mandate we received to amend the legal system,” said the prime minister, referring to the 64-seat majority in the 120-member Knesset that the pro-Netanyahu bloc of right-wing and Orthodox parties won in the November 2022 election.

When Justice Minister Yariv Levin, one of the principal architects of the government’s judicial overhaul program, laid out his original judicial overhaul program back in January, he included proposals for addressing both reasonableness and the standing of government legal advisers in his legislative package.

Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister’s Office in Jerusalem on June 18, 2023. (Amit Shabi/POOL)

But those bills were not advanced in the Knesset due to legal objections — the kind with which the coalition wishes to do away — and the government’s desire to focus on changes to the Judicial Selection Committee and judicial review, which it froze at the end of March.

During negotiations between the coalition and the opposition over the past two and-a-half months, compromises regarding the use of reasonableness and the standing of legal advisers reportedly did come under discussion, and the opposition indicated its willingness to make concessions on some aspects of those reforms.

Now, with the negotiations frozen and Netanyahu coming under severe pressure from inside his Likud party as well as his coalition partners, it appears the prime minister and the government are set to push ahead with some version of these reforms unilaterally.

Reasonable change?

The use by the Supreme Court of the test of reasonableness to evaluate the validity of policy and administrative decisions by government ministries, departments, and agencies as well as political appointments has long been a source of frustration for reform advocates on the Israeli right.

This concern came to the fore in January when the High Court ruled that Shas leader Aryeh Deri’s appointment as a cabinet minister was “unreasonable in the extreme” due to his previous criminal convictions and a commitment to quit the Knesset as part of a plea bargain in 2022 and ordered Netanyahu to fire him.

In another recent decision, the High Court ruled, based on previous decisions, that Defense Minister Yoav Gallant’s decision to ban West Bank Palestinians from participating in a joint memorial day event inside Israel was “unreasonable” and ordered him to issue entry permits for the participants.

Shas chair Aryeh Deri arrives at the office of Prime Minister Benjamin Netanyahu at the Knesset, in Jerusalem, on June 14, 2023. (Yonatan Sindel/Flash90)

During overhaul compromise negotiations, the opposition is believed to have tacitly agreed to reduce the court’s ability to use the reasonableness test when reviewing government policy and decisions by elected officials.

This would alleviate some of the frustration felt among the parties of the current coalition over what they see as overbearing High Court intervention through the use of the reasonableness tool.

The opposition did not agree to stopping the court’s use of reasonableness for political appointments, such as that of Deri. Conceding on that issue, however, would cause Netanyahu and the coalition political problems due to Deri’s central position in the coalition as head of the Shas party.

What the government will decide to include in legislation on the issue remains to be seen; it will be one of the topics discussed in Monday’s meeting of coalition party heads.

Former Supreme Court President Aharon Barak, who is often accredited with — or accused of — initiating a judicial revolution in the 1990s that increased judicial review over government policy and legislation, said at a conference at Reichman University on Sunday night that he would be willing to accept restrictions on the use of reasonableness over government policy and ministerial decisions — provided, he indicated, that the rest of the overhaul legislation was scrapped.

But Barak rejected banning the use of reasonableness for reviewing ministerial and political appointments.

Former Supreme Court president Aharon Barak in a January 7, 2023 TV interview (Channel 13 screenshot)

Amended advisers

The coalition is already preparing legislation to change the standing of ministerial legal advisers.

This issue was also discussed in the compromise negotiations at the president’s residence, although there was less common ground on that matter.

Coalition parties and senior ministers have long complained that ministerial legal advisers block the policy initiatives of government ministers on the basis that the policy would violate existing law.

Since the position of ministerial legal advisers is binding on the minister, owing to precedent from Supreme Court rulings on the matter, proponents of reform to the standing of legal advisers have argued that changes are necessary in order to allow the minister the ability to implement the policies for which they were elected.

This was one of Levin’s primary goals at the beginning of the government’s term, and he chafed against the attorney general when she stymied the advance of the legislation back in January.

Levin’s bill would have made the positions of legal advisers not binding on government ministers and also turned the advisers into political appointees selected by the minister themself.

Justice Minister Yariv Levin arrives at the Knesset office of Prime Minister Benjamin Netanyahu, June 14, 2023. (Yonatan Sindel/Flash90)

Currently, legal advisers are professional appointments and come under the authority of the Justice Ministry and the attorney general.

Another key issue that Levin and the coalition seek to address in such legislation is to allow government ministers to obtain independent counsel during legal proceedings against government policy if the legal adviser or attorney general opposes the minister’s position.

Currently, the attorney general is at liberty to deny the minister private counsel, meaning that the minister’s position is not even heard in court proceedings, making it highly likely that the policy or action in question is overturned.

Likud MK Avihai Boaron speaks at a press conference near the Knesset in Jerusalem, calling for the coalition’s planned judicial overhaul to be passed, June 12, 2023. (Noam Revkin Fenton/Flash90)

A soon-to-be-released draft bill authored by Likud MK Avihai Boaron would make the stance of legal advisers non-binding, allow the minister to determine the position they wish to have represented in legal proceedings, and allow the minister to avail themself of independent counsel without permission of the attorney general.

In the compromise negotiations under the auspices of the president, the only changes to the standing of the legal advisers that the opposition was willing to accept were ones to enable an adviser’s dismissal through a specially designated committee and to limit their tenure to six years.

Ynet also reported that the opposition was willing to allow changes to enable the minister to have greater input in appointing legal advisers and that independent counsel could be obtained without the permission of the attorney general.

Yesh Atid head Yair Lapid (left), National Unity head Benny Gantz and MK Karine Elharrar hold a joint press conference in the Knesset on June 14, 2023, at which they suspended their participation in talks with the coalition on a compromise program of judicial reform. (Yonatan Sindel/Flash90)

In a joint statement on Sunday evening, the Yesh Atid and National Unity opposition parties denied having reached any concrete agreements with the coalition during the negotiations on either reasonableness or ministerial legal advisers.

“No document expressing agreement was ever forwarded with our approval or knowledge. There are large gaps between the parties both in the cause of reasonableness and on legal [advisers],” the parties declared.

They added that “unilateral steps will bury the dialogue process and cause incalculable damage to the Israel economy, national security and the unity of the nation.”

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