ISRAEL AT WAR - DAY 145

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Explainer

Israel’s judicial overhaul: What is the coalition planning and where does it stand?

Plan will give politicians the power to appoint judges, block courts from reviewing almost all legislation and ministerial appointments; coalition wants to complete within a month

Carrie Keller-Lynn

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Prime Minister Benjamin Netanyahu, second from left, with Justice Minister Yariv Levin, center, and MK Simcha Rothman, right, during a vote in the Knesset, February 15, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu, second from left, with Justice Minister Yariv Levin, center, and MK Simcha Rothman, right, during a vote in the Knesset, February 15, 2023. (Yonatan Sindel/Flash90)

Prime Minister Benjamin Netanyahu’s government is racing to pass an ambitious, sweeping plan to curtail the judiciary and claim unprecedented power for politicians.

Critics say it marks a revolutionary change in Israel’s governance, essentially removing the ability of the Supreme Court — which also sits as the High Court of Justice — to act as a check on the Knesset and governing coalition. This could move Israel from a liberal democracy to another system of governance, experts say.

In addition to highlighting the danger it poses to liberal democratic institutions, the rule of law and protections for civil liberties, critics also point to economic, diplomatic and legal repercussions, already signaled by professionals and international leaders.

Supporters of the overhaul have dismissed mass protests and calls to freeze the legislative drive. Those backing the package of bills making up the plan say it is necessary to “rebalance” power away from an activist judiciary toward the people’s elected representatives, and that doing so will “strengthen democracy.” They also say that many in their camp do not identify with the court, long seen as a bastion of liberalism, and want to bring more social and ideological diversity to its ranks.

The architect of the overhaul, Justice Minister Yariv Levin, a committed ideologue on the matter, has said he will continue pushing it at breakneck speed. The rollout is currently on course to be completed before the Knesset breaks for its Passover recess on April 2.

While Levin has said he is open to dialogue as the legislation advances toward becoming law, opposition members and President Isaac Herzog have both set freezing the process as a condition for discussion, so as not to provide a fig leaf for an overhaul that will proceed unchanged.

Amid eight weeks of accelerating protest, on Wednesday a small group of MKs from both Levin’s Likud and the opposition’s leading advocate of compromise, Benny Gantz’s National Unity party, published an open letter calling both sides to the table — but again, without resolving the question of preconditions.

Mounted police move against demonstrators protesting the government’s planned judicial overhaul, in Tel Aviv, March 1, 2023. (Erik Marmor/Flash90)

The following is an outline of the main components of the judicial upheaval that are currently in play, and an explanation of where each stands in the legislative process.

Transferring judicial appointments into political control

What the measure entails: This element would give the coalition total control over the appointment of judges by changing the composition of the nine-member Judicial Selection Committee and reducing the threshold required to appoint a judge to five votes — the same number of committee seats to be held by coalition politicians.

Currently, the Judicial Selection Committee balances power between political and professional interests through its division of panel membership and by requiring seven of the nine members to agree to select a Supreme Court justice, forcing compromise between the factions. Lower court judges, however, require only five votes.

Rather than its current makeup of three judges, two representatives of the Israel Bar Association and four politicians, the new panel will reshuffle seats to edge out the IBA and give three seats to ministers and three seats to MKs.

In addition to the Supreme Court president, the justice minister can choose two additional judges, including from lower courts, with the president’s agreement, instead of all three seats going to Supreme Court justices. Joining the justice minister on the panel, the government can appoint two additional ministers. And the lawmakers will be the head of the Constitution, Law and Justice Committee, an additional coalition lawmaker chosen by the Knesset speaker and a third MK chosen by the opposition.

Justice Minister Yariv Levin at the Knesset in Jerusalem, on February 20, 2023 (Yonatan Sindel/Flash90)

What supporters say: Many Israelis do not see the Supreme Court as representative of the country, and hold values or identities that they do not see reflected in the court’s 15 justices. Politicians argue that by transferring appointments to political control, coalition politicians — elected by voters — can deliver a court more representative of their political camps.

Celebrating the bill clearing its first Knesset vote in late February, Levin said the change in the judicial selection panel would “enable pluralism,” draw “judges from all parts of the people” and maintain judicial independence.

Supporters also argue that the Supreme Court and professional lawyers’ association have colluded to use their power to push through cronies, a criticism partially addressed by raising the threshold for selecting a judge from five to seven of the panel’s nine votes.

What critics say: Critics argue that the measure will ultimately make the entire Supreme Court beholden to coalition politicians, who will have the power to push through any candidate without needing to compromise with other members of the panel.

Giving politicians sole say over the selection and promotion of judges will politicize the judiciary and threaten its independence, they add. Former justice minister Gideon Sa’ar has argued that judges will know which politician they “owe” their seats to and that lower court opinions may be issued with an eye toward securing future promotions.

With time, the entire Supreme Court will, in Sa’ar’s language, “owe” its seats to specific politicians or political camps.

Where the legislation stands: Backed by the Constitution, Law and Justice Committee, the bill to change the composition of the court advanced past its first reading on February 21, and returned to committee in preparation for its second and third readings before it becomes law.

Preemptive immunity for legislation

What the measure entails: The bill would block courts from being able to strike down regular laws passed by the Knesset, provided the law includes an immunity clause explicitly stating that it can’t be challenged on the basis of violating a Basic Law, which is how the court has overturned legislation in the past. The law must also be passed by at least 61 MKs and not a simple plurality.

The clause would be valid during the term of the Knesset that passes it and for one year into the next Knesset, which can also decide to extend the clause’s protections “indefinitely.”

As Israeli law is easily amended by the same legislative process required for passing a new law, this clause can also be inserted retroactively by changing an existing law to include the measure.

A few laws that require a supermajority of more than 61 MKs to be changed would not be eligible for the immunity clause’s protections.

President of the Supreme Court Justice Esther Hayut at a court hearing, December 1, 2022. (Yonatan Sindel/Flash90)

The protective language is sometimes called a “notwithstanding clause” because it explicitly states the law is “valid, notwithstanding what is stated in Basic Laws.”

The pre-emptive measure is part of a multi-pronged campaign to quash High Court oversight of legislation, together with planned bills that would limit the purview of the Bench and enable the Knesset to re-enact legislation struck down by the court after the fact.

What supporters say: Backers maintain that the measure “restores control to the people as the sovereign” via the people’s representative, the Knesset.

They also hail the measure as shutting down court overreach. Many supporters accuse an activist High Court of issuing rulings that they disagree with, including those limiting illegal settlement activity and blocking the codifying of sweeping religious study exemptions from military service.

Constitution Committee chair MK Simcha Rothman also claimed that the requirement to hit 61 MKs and built-in expiration means it would be difficult to achieve an override of the court’s ability to exercise judicial review.

What critics say: The “notwithstanding clause” could be added by legislators to nearly any bill, thereby barring courts from reviewing legislation even if it directly contradicts one of Israel’s quasi-constitutional Basic Laws. This could give Knesset members carte blanche to pass laws that curb minority rights normally protected under the Basic Laws, without any legal remedy outside the legislative process.

Where the legislation stands: Two parallel bills are currently being discussed to advance this forward, which Rothman’s office describes as a “technical” matter. The first, a private members’ bill sponsored by Rothman, cleared its preliminary reading on February 22. A second, parallel, Constitution Committee bill is also in the works to advance the measure, and was provisionally cleared by the committee on March 1 for its first reading.

Constraining the court’s ability to interpret Basic Laws, including to establish civil liberties

What the measure entails: Under the bill, the High Court of Justice would only be empowered to strike down Knesset laws if they “clearly” violate an order “entrenched” in a Basic Law.

Practically, this means that the High Court cannot derive guarantees for civil liberties from Basic Laws unless those rights are explicitly spelled out.

Fundamental civil rights, such as the right to equality, freedom of expression and others, are not delineated in any Basic Laws, but have become inherent facts of Israel’s legal landscape owing to rulings by the High Court interpreting Basic Laws, primarily Basic Law: Human Dignity and Liberty. Those rights would no longer be immune to change by politicians.

What supporters say: If the Basic Laws have the standing of a constitution, then courts should stick to a narrow reading of the explicit legislation and not read between the lines to tease out rights.

Rothman, who backs this provision, has argued that if the High Court is able to strike down legislation based on the argument that the Knesset limited its legislative powers through the Basic Laws, then it can only do so according to what is explicitly written in those laws.

Demonstrators block a road and clash with police as they protest against the government’s planned judicial overhaul, in Tel Aviv, March 1, 2023. (Erik Marmor/Flash90)

The lawmaker posited that civil liberties would enjoy protections due to tacit societal agreements on such issue. Rothman also said that there is a “possibility” that the High Court could continue hearing cases involving judicially derived civil liberties after this measure passes.

Supporters also say the measure, by delineating what the court can and cannot review, enshrines for the first time the ability to strike down laws; the power had heretofore been established by the court itself but was never laid out explicitly in legislation.

What critics say: Stripping the court of this interpretive power erases constitutional protection for civil liberties.

Constitution Committee legal adviser Gur Bligh cautioned Rothman that if the court does not retain the ability to strike down legislation that contravenes civil liberties that it itself has established, “it means that there would be no constitutional protection for basic rights like freedom of speech.”

Where the legislation stands: Tied to the notwithstanding clause, this measure is also part of two parallel bills. One, sponsored by Rothman, cleared its preliminary reading on February 22. The second, a Constitution Committee bill, was provisionally cleared by the committee on March 1 for its first reading.

Blocking the Supreme Court from reviewing Basic Laws

What the measure entails: The Supreme Court cannot exercise oversight over Basic Laws.

What supporters say: Basic Laws have quasi-constitutional standing and should be protected from being struck down by the court.

What critics say: Intended to be the draft chapters of a future Israeli constitution, Basic Laws are given special standing, but in most cases, not a special process. Most Basic Laws can be changed with a simple majority of MKs present to vote, and can be easily manipulated to solve short-term political issues, such as Basic Law legislation passed in 2020 to underpin a failed rotation agreement between Netanyahu and National Unity head Benny Gantz.

Critics also claim that the coalition is trying to have it both ways, by treating Basic Laws as constitutional but also highly malleable. They note that Rothman opened his committee’s first reading by stating that Basic Laws were not a constitution.

Additionally, critics point to the fact that the bill blocking Basic Law review is an amendment to Basic Law: The Judiciary, and would itself be untouchable by the completed measure.

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman, right, during a committee hearing, March 1, 2023. (Yonatan Sindel/Flash90)

Where the legislation stands: Included in the package of changes to the Judicial Selection Committee, it cleared its first reading on February 20 and is in debate in Rothman’s committee ahead of its second and third readings.

Requiring expanded panels and thresholds for judicial review

What the measure entails: The proposal demands that 80%, or 12 of today’s 15 Supreme Court justices, be required to support striking down a law. Hearings in which a law is under review will require the full 15-justice bench to be impaneled.

What supporters say: Laws are too easily nixed by the High Court, which currently only needs a simple majority in a panel of 9 or 11 justices to reverse legislation.

Since the court established its substantive judicial review power in 1995, it has canceled 22 laws in part or in entirety.

What critics say: Given ideological diversity on the court, raising the threshold to 12 of the court’s 15 justices will make it very difficult to invalidate laws. Combined with other proposals to limit the court’s oversight of laws, such as nixing Basic Law review and creating a preemptive immunity clause, the court would be hard-pressed to conduct any meaningful substantive judicial review.

Many opponents of the judicial overhaul are open to raising the bar for invalidating legislation, but object to the especially high threshold set by this proposal.

Constitution Committee legal adviser Bligh backed this criticism, telling the committee that almost no other democracy has a special majority requirement for judicial review.

Yisrael Beytenu MK Yulia Malinovsky (right) and Yesh Atid MK Vladimir Beliak (left) bicker with Knesset Constitution, Law and Justice Committee Chair MK Simcha Rothman, March 1, 2023. (Yonatan Sindel/Flash90)

Where the legislation stands: The Constitution, Law and Justice Committee, which sponsored the bill, provisionally approved it on March 1 for first reading in the Knesset, but it will return to committee on March 5 for a second vote to overcome objections. Identical legislation appears in a parallel private member’s bill, which cleared its preliminary reading on February 22.

Protecting the prime minister against a forced leave of absence

What the measure entails: The bill stipulates only two ways for a prime minister to be recused from office: the prime minister informs the Knesset that they are recusing themselves, or three-quarters of cabinet ministers vote to put the premier on leave of absence, a decision which must then be upheld by at least 90 Knesset members. The basis for recusal must be physical or mental incapacitation.

The legislation adds that no court shall be empowered to hear a petition demanding the prime minister’s recusal, or make such a ruling.

Last month, the High Court of Justice agreed to hear a petition requesting the court to order Netanyahu to recuse himself, owing to his ostensible conflict of interests in presiding over far-reaching legal and judicial reforms while he is himself on trial for corruption.

On March 2, Netanyahu’s legal team told the High Court the attorney general’s assertion that the premier’s involvement in judicial reform policy would be a conflict of interest was “theoretical, speculation.”

What supporters say: Bill sponsor Ofir Katz (Likud) has said that voters and their representatives choose the prime minister, and it is improper for the court to interfere.

What critics say: Attorney General Gali Baharav-Miara has said she opposes the bill, noting it would sharply reduce the circumstances under which the recusal of a prime minister could be ordered, and warned that the proposal would create a legal “black hole.”

Attorney General Gali Baharav-Miara attends a conference of the Israeli chapter of the Association of Corporate Counsel (ACC) in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)

Where the legislation stands: The bill advanced past its preliminary reading in the Knesset on March 1 and is expected to head to a new committee headed by Katz for preparation for its first reading.

Ending court discretionary oversight over ministerial appointments, AKA ‘Deri 2’

What the measure entails: The measure blocks the High Court of Justice from reviewing ministerial appointments unless it comes in direct conflict with fitness criteria set out in Basic Law: The Government.

The new bill is part of an explicit effort to return Shas leader Aryeh Deri to the cabinet, and has been nicknamed “Deri 2.”

Deri was convicted of tax offenses last year but given only a suspended sentence as part of a plea deal. Fearing that the suspended sentence could still carry a “moral turpitude” ruling that would force Deri to take a time-out from politics for seven years, the nascent coalition passed an amendment to Basic Law: The Government in December to clarify that only appointees who were sentenced to custodial prison sentences would be subject to the turpitude test.

However, in January, the High Court of Justice ruled that Deri’s appointment to the cabinet was “unreasonable in the extreme” and also barred by estoppel, after he allegedly said he would quit politics in the January 2022 plea deal. The attorney general thus ordered Netanyahu to fire his senior ally.

Shas party leader Aryeh Deri leads a faction meeting at the Knesset in Jerusalem, February 6, 2023. (Yonatan Sindel/ Flash90)

What supporters say: The courts should not interfere with the voice of the people, who supported politicians with their votes and brought them to Knesset and the government. Specifically, politicians say knocking out the Shas leader would void the votes of around 400,000 people who backed Shas in the last election.

What critics say: This is a personally-tailored bid to return Deri to office by changing the rules mid-game.

Where the legislation stands: A private members’ bill introduced by Shas MK Moshe Arbel, the bill cleared its preliminary reading on February 22 and began discussion in a special committee on March 1.

Removing police internal investigations from the purview of the State Attorney’s Office

What the measure entails: Currently part of the State Attorney’s Office, the initiative would transfer the Police Internal Investigations Department to the Justice Minister’s control and enable it to investigate state attorneys.

This means the unit will move from being under an independent, professional authority within the Justice Ministry to political control.

Likud MK Moshe Saada attends a special committee meeting in the Knesset, December 25, 2022. (Yonatan Sindel/Flash90)

What supporters say: Likud MK Moshe Saada, a disgruntled former deputy head of the internal investigations unit, says the transfer would prevent conflicts of interest, as the police and State Attorney’s Office often work closely together, making it difficult for them to keep probe’s independent.

What critics say: Critics charge that this change would allow the Justice Minister to order investigations against police or prosecutors in retaliation for them investigating or prosecuting political allies. This concern is raised in the backdrop of much Likud effort expended on discrediting the police and prosecutors, in connection to their investigation and subsequent indictment of Netanyahu in three corruption cases.

Netanyahu remains on trial and maintains his innocence, claiming the charges were fabricated by a politically motivated police force and state prosecution, backed by left-wing politicians and a leftist media, enabled by a weak attorney general.

The State Attorney’s Office has criticized the attempt to strip its police investigation unit as undermining its professionalism.

Where the legislation stands: A private member’s bill put forward by Saada, it passed its preliminary reading on February 22 and is in committee preparation.

Additional changes signaled by the coalition

There are several more parts of the proposed judicial overhaul that have yet to be brought to the plenum. These include the following.

Transforming legal advisers and their advice from professional authorities to discretionary positions of trust: Currently, ministry legal advisers maintain their independence by being professionally subordinate to the attorney general. Ministries, led by politicians, are bound by their opinions. Ministries also must be represented by their legal advisers.

The bill, which has been introduced to the Constitution, Law and Justice Committee but is currently backburnered, would enable ministers to appoint their own legal advisers, and make both ministry legal advisers and the attorney general’s opinions non-binding on ministers and the cabinet.

The government would also be able to be represented by lawyers of their own choosing, which would provide more robust support for positions they hold in conflict with state legal advice.

Limiting the judicial test of reasonableness: Levin has pushed to cancel the judicial “reasonableness” test, with which judges can evaluate and invalidate government or public sector decisions as unreasonable.

Rothman, on the other hand, proposes solely banning the test’s application against elected officials.

The reasonableness test was most recently used to argue against Deri’s dual ministerial appointment, in light of his recent tax fraud conviction.

Enacting a mechanism for the Knesset to reinstate laws nixed by the court, known as an override clause: A counterpart to preemptive immunity, this measure would enable the Knesset to re-legislate laws struck down by the court as unconstitutional.

Although the specific number of lawmakers required for such an override is still in dispute, active proposals range from bestowing the Knesset this power with a majority of 61 MKs, as pushed by Levin, to an 80 MK supermajority, suggested by Gantz.

Moving Supreme Court president and vice president appointments to political control: Rather than appointment by the court, following a precedent of honoring seniority, Levin has proposed moving the selection of the court’s president — who determines which justices and how many will handle cases — directly to politicians’ hands.

Jeremy Sharon contributed to this article.

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