Knesset legal adviser: Judicial overhaul should take effect only after next election
Consultant to Constitution, Law and Justice Committee says major reforms would concentrate power in the executive and legislature while radically reducing constraints on that power
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The legal adviser to the Knesset’s Constitution, Law and Justice Committee has recommended that government-backed legislation to enact sweeping reforms to the legal and judicial system come into effect only in the next Knesset.
The non-binding legal opinion argued that such a far-reaching overhaul should only take effect after another general election, giving the public time to decide if it backs the shift. The opinion was submitted to the committee on Friday to address the legislative amendments proposed by the coalition through committee chairman MK Simcha Rothman to Basic Law: The Judiciary, which would enact several radical changes to the legal system.
The government is eager to pass these reforms — the first package in a series of planned measures — before the end of the Knesset’s winter session on April 2, but has been met with intense criticism from large segments of the public, opposition parties, jurists, economists and business leaders.
The legal opinion submitted by the legal adviser is unlikely to have any effect on the government or Rothman’s legislative schedule, but could be used in the future to argue in any possible appeal against the measures that the process by which they were adopted was flawed.
The draft bill proposed by Rothman would give the government complete control over the appointment of judges; severely restrict the High Court of Justice’s power of judicial review over legislation; allow the Knesset to override a High Court decision to strike down legislation; make legislation immune from judicial review at the beginning of the legislative process; prevent the High Court from reviewing Basic Laws; and prevent the court from using the principle of “reasonableness” to assess administrative decisions by the government and other state agencies.
“The proposed amendment has far-reaching consequences for [the system of] government and the relations between the branches of government,” wrote committee legal adviser Gur Bligh.
“It changes the balance of power between them, and gives considerable power to the coalition majority and the executive branch,” he continued, noting in particular the broad powers these branches of government would wield over the judiciary and their ability to force through legislation with almost no judicial oversight.
Bligh said his recommendation was therefore that if the reforms are enacted, they should “be implemented with a forward-looking view starting from the next Knesset, and not be implemented immediately in order to strengthen the power of a given government and coalition.”
Bligh wrote that implementation of major changes to Israel’s system of government had been delayed in such a fashion in the past in order to ensure they were “taken out of the immediate political context” and to avoid a situation in which they were designed to help achieve specific political goals.
He noted that the 19th Knesset had passed a law changing the mechanism for votes of no confidence to topple a sitting government, but that implementation of the legislation was put off until the 20th Knesset.
And legislation passed in 1992 allowing for the direct election of prime ministers was implemented only in 1996.
Addressing the details of the legislative amendments, Bligh wrote that each proposed reform by itself would radically change the balance of powers between the branches of government. Taken together, they “would concentrate governmental power in the hands of the executive branch and the coalition majority that supports it, while dramatically reducing the restrictions on the use of this power.”
Bligh added that each reform was at the most extreme end of what has been proposed in the past, such as an override clause that would allow just 61 MKs to re-legislate a law struck down by the court — compared to a proposal by the 2004 Neeman Committee to set that number at 70 MKs.
“The [proposed] arrangement would lead to a very significant reduction in the checks on the legislative and executive authorities, and would lead to a serious violation of the principle of separation of powers and the decentralization of governmental power, which is a core principle in a democratic regime,” wrote Bligh.
During the course of another tempestuous hearing in the committee on Sunday morning in which Bligh laid out his opinion on the legislation, Rothman read out the text of a legal reform bill submitted by Likud MK Miki Zohar in May 2021, after the March 2021 election but before the establishment of the Bennett-Lapid government, which passed a preliminary reading in the Knesset plenum and gained the votes of National Unity MKs Gideon Sa’ar and Matan Kahana, but was ultimately not advanced by the government that was formed in June 2021.
Zohar’s bill included provisions similar to those proposed in Rothman’s legislation, including a High Court override clause and tight restrictions on the court’s ability to strike down legislation.
“A preliminary draft bill is a proposal for debate,” said Rothman. “We can discuss it after [it has been passed in a preliminary hearing]. It can be changed afterwards, we can think about it [again] afterwards.
“I am bringing this [draft legislation] as a basis for discussion so that we can know that at the very least there is something to discuss. We are extending our hand for dialogue, but you [the opposition] are saying it’s an extremist proposal. Everyone can read the proposal from the previous Knesset, and the public can decide,” he added.