Justice minister unveils plan to shackle the High Court, overhaul Israel’s judiciary
Levin announces sweeping proposals to severely curtail judges’ powers; claims court’s intervention in decisions, Knesset laws harms democracy; opposition warns of ‘political coup’
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Justice Minister Yariv Levin on Wednesday announced a wide-ranging and highly controversial overhaul of Israel’s judicial and legal system which, if enacted, would amount to arguably the most drastic changes ever to Israel’s system of government.
The changes set out by Levin during a press conference at the Knesset would severely limit the authority of the High Court of Justice, give the government control over the judicial selection committee, and significantly limit the authority of government legal advisers.
The justice minister, a member of Prime Minister Benjamin Netanyahu’s Likud party, claimed that judicial activism had ruined public trust in the legal system and made it impossible for governments to rule effectively.
“We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard,” he charged. “That is not democracy.”
He specified change in four core areas: Restricting the High Court’s capacity to strike down laws and government decisions, by requiring an enlarged panel of the court’s judges and a “special majority” to do so, and including an “override clause” enabling the Knesset to re-legislate such laws unless all 15 justices unanimously ruled to strike them down; 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.
His “long overdue” reform, Levin said, was aimed at “strengthening democracy, rehabilitating governance, restoring faith in the judicial system, and rebalancing the three branches of government.”
His proposals were welcomed across the governing coalition, where the parties’ various deals with Levin’s Likud state that they will prioritize judicial reform.
But opposition leaders denounced Levin’s intended legal overhaul as a clear and present danger to Israeli democracy and the system of checks and balances on government power.
Leader of the opposition and Yesh Atid Chairman Yair Lapid, as well as National Unity leader Benny Gantz, both condemned the proposals as a “political coup,” while Labor leader Merav Michaeli accused the government of behaving like “a mafia” due to the timing of the announcement.
The High Court is scheduled on Thursday morning to hold a hearing on petitions demanding that the appointment of Shas leader Aryeh Deri as interior and health minister be annulled.
According to Levin’s proposals, the High Court will be explicitly prevented from deliberating and ruling on Israel’s Basic Laws.
The Basic Laws have quasi-constitutional status but unlike a formal constitution, most of them can be amended or even annulled by a simple majority, including the critical Basic Law: Human Dignity and Liberty.
The High Court has never struck down a Basic Law or an amendment to one, although it has intimated that it has judicial review over them in some circumstances.
Levin said that as part of his proposals, the High Court would only be able to strike down Knesset legislation by a panel of all 15 judges and with a “special majority.”
“There will be no more striking down of Knesset laws without authority,” he said, in reference to the fact that a law has never been passed explicitly granting the High Court judicial review over Knesset legislation.
The justice minister did not state what that special majority would be, although proposals by his allies in the Religious Zionism party call for requiring 14 of the court’s 15 judges to rule in favor of striking down legislation.
A High Court override clause will also be legislated, Levin said, to allow the Knesset to re-legislate a law struck down by the court, with a majority of 61 MKs.
Levin added, however, that the Knesset would not be able to re-legislate a law struck down by the court in a unanimous decision of all 15 judges during the course of that Knesset term.
The justice minister also said his reforms would change the composition of the judicial selection committee and give “equal representation to all three branches of government.”
The committee would include two “public representatives” to be chosen by the justice minister, instead of the two representatives currently appointed to the committee by the Israel Bar Association.
The nine-member committee currently includes three members of the government and the ruling coalition.
Adding two representatives chosen by the justice minister would give the government a majority of at least five against four on the committee.
Israel’s political right has long complained that the three High Court judges on the committee have too much sway over the selection of judges, although all branches of government represented on the panel have a veto over the selection of High Court justices. “There will no longer be a situation whereby judges choose themselves in back rooms with no protocol,” he said, misrepresenting the current composition of the panel.
The third item in what Levin said was the “first stage” of his legal-system overhaul is to ban the High Court from using a “reasonableness” standard in judicial review, which has been used by the court to determine whether or not a government or ministerial decision or regulation is lawful.
Levin said this would “restore the decision-making capability of the elected government,” adding “there is no such thing as “the cause of reasonableness.”
Finally, the package of reforms will change the status of government and ministerial legal advisers, so that their stated positions on administrative decisions and regulations will not be seen as binding on their ministry or agency.
Although Levin did not say so explicitly, it appeared likely that the reforms would change the position of professional legal advisers to political appointees.
Levin, and other right-wing advocates of legal reform, have argued that legal advisers too often act as an obstacle to the ability of a minister to enact the policies he wishes, and this step is seen as crucial in giving ministers greater control over policy-making.
“These reforms will strengthen the legal system, and restore the public’s trust in it. They will restore order: It will allow the legislatures to legislate, the government to govern, legal advisers to advise, and judges to judge,” concluded the justice minister.
Answering subsequent questions from reporters, Levin said that lowering the age of retirement for judges, as had been mooted, was not on the agenda.
He also denied that his reforms were designed to influence legal proceedings against anyone in the new government, including petitions against Deri in the High Court on Thursday morning and Netanyahu’s ongoing corruption trial. He said he had been working on these reforms for 20 years, that the timing would always have been queried, and that their unveiling “is not related to any specific case. It is an “essential reform,” he said, “and should have been carried out long ago.”
Levin insisted that his reforms were balanced and that, despite the concerns of opposition parties and numerous legal experts, the High Court’s power of judicial review would remain intact since it will still be able to strike down laws with the “special majority” of the entire panel of judges.
The justice minister also implied that the legislation would not be hastily rushed through the Knesset, saying there would be an “in-depth, serious debate” on the reforms, and said he believed the various pieces of legislation required to enact them would not look the same in their final readings as the bills that will be submitted at the beginning of the process.
“The constitutional revolution and the ever-growing intervention of the legal system in government decisions and Knesset legislation have reduced public trust in the legal system to a dangerous nadir, and led to a lack of governability and done a severe blow to democracy,” intoned Levin.
“I’ve warned against the damage caused by judicialization. Now, the time has come to act.”
Lapid, however, castigated Levin over his proposals and the timing of his announcement: “Like a gang of criminals, the day before the High Court hearing on the Deri Law, the government put a loaded gun on the table.”
Promising to fight the “madness,” Lapid vowed that his bloc would reverse the reforms “when” it returns to power.
“What Yariv Levin presented today is not a legal reform, it is a letter of intimidation. They threaten to destroy the entire constitutional structure of the State of Israel,” said the opposition leader.
National Unity party MK Gideon Sa’ar, who until last week occupied Levin’s seat at the Justice Ministry, likewise condemned his successor’s plans, describing them as a betrayal of the ideals of Likud founder Menachem Begin.
Sa’ar said Levin’s proposals were “no less than an execution of Menachem Begin’s democratic and regime doctrine.”
He added, “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, a former senior Likud member before breaking with Netanyahu in 2019, wrote that Begin’s “true disciples have the duty to fight it. And so I will.”
Levin’s coalition partners, including the prime minister, were strongly supportive of the proposals.
Netanyahu 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,” said the prime minister.
And Finance Minister Bezalel Smotrich released a video message “blessing” the “restart to the judicial system” and insisting that the pledge to overhaul the judicial system was the most critical issue in the recent general election.
“You all know that this is what the election [was about], this is what the Israeli public declared,” said Smotrich. “We have a full mandate to increase the Israeli public’s faith in the judicial system, and strengthen Israel as a Jewish and democratic state.”
