Two right-wing camps seek to reform Israel’s judiciary, in opposite ways

Many of the most controversial issues facing the country today, such as the conflict with the Palestinians, matters of religion and state, and minority civil rights, end up being adjudicated in the courts and specifically the High Court, which is made up of Supreme Court justices.

It should be no surprise, then, that among the bitter ideological divides between Israel’s opposing political blocs that are especially notable ahead of the November 1 election, one of the deepest and most consequential addresses the role of the legal system in public life, and the place and authority of the High Court of Justice in particular.

In recent years, court rulings regarding land ownership in the West Bank, civil marriage, migrants and asylum seekers, ultra-Orthodox enlistment, and more have all generated frenzied public debate and high political tensions.

The right-wing has aimed heated rhetoric against the High Court for rulings seen to be overly liberal, insufficiently considerate of Israel’s Jewish character, and an undemocratic limit on the elected Knesset and government, which have leaned decidedly toward its side of the political spectrum for the last decade.

Israel’s centrist and left-wing camps, locked out of power for much of the last several years, have frequently welcomed the court’s interventions, viewing the bench as a critical check on attempts by right-wing and religious parties to steamroll their legislative agendas through the legislature.

Right-wing and religious parties, especially those aligned with Likud and its leader Benjamin Netanyahu, have made little secret of their wishes to take this lever of power away from the center-left, advocating for legislative solutions to override court decisions and a wholesale overhaul of the way judges are selected.

A nine-judge panel of the High Court of Justice headed by then Supreme Court president Asher Grunis during a hearing of a petition by human rights groups against the an amendment to the Prevention of Infiltration Law, April 1, 2014. (Flash90)

On October 18, Religious Zionism party leader Bezalel Smotrich tossed a grenade into the simmering debate over the role of the court, demanding both a High Court override clause and judicial selection reform as non-negotiable conditions for his party to enter a government.

Smotrich also announced that his party would seek to abolish the crime of “fraud and breach of trust,” which Netanyahu is facing in his ongoing trial (along with one charge of bribery), and grant immunity from prosecution to prime ministers, ministers and MKs for any crime they might commit in relation to their position while in office.

That declared goal and the wider battle over the role and status of the judiciary, highlighted days before Israelis head back to the polls, have thrust the future of the court into the center of the political hurly-burly.

The parties of the current coalition, including those on the right, are vehemently opposed to the kind of radical changes sought by Smotrich and others in the pro-Netanyahu bloc, arguing that they would fundamentally undermine the checks and balances of the Israeli democratic system and give the government unrestrained power.

Chairman of the Religious Zionism party MK Bezalel Smotrich and his party member MK Simcha Rothman present the ‘Law and Justice’ program during a press conference in Kfar Maccabiah in Tel Aviv on October 18, 2022. (Avshalom Sassoni/Flash90)

On opposite sides of the debate are Religious Zionism MK Simcha Rothman, a leading voice on the far right for overhauling the judicial system, and Justice Minister Gideon Sa’ar of the National Unity Party, who is also a longtime advocate for judicial reform, but opposes giving the government total control over judicial appointments and abolishing the principle of judicial review.

The people’s court

Rothman, a lawyer by profession who has written a book on his perspective of the Israeli judicial system, told The Times of Israel that he remains vehemently opposed to the current judicial selection process.

Judges are chosen by a panel made up of the justice minister, a second minister, two Knesset members, two representatives of the Israel Bar Association and three High Court judges, including the court president.

A simple majority is needed to appoint judges to Israel’s magistrates and district courts, and a majority of seven out of nine is needed to appoint a High Court justice.

“This is a self-perpetuating court,” Rothman argued, noting that elected officials are in the minority.

A 2008 law advanced by Sa’ar, who was then a member of Likud, raised the majority required to appoint a High Court judge to seven out of nine, giving the process more balance, he concedes, but he worries that it still gives unelected officials, and even the cadre of High Court judges themselves, a veritable veto over the selection of new justices.

Former Israeli minister of justice Ayelet Shaked seen with Supreme Court President Esther Hayut, former finance minister Moshe Kahlon, and members of the Israeli Judicial Selection Committee at a meeting of the committee in the Ministry of Justice in Jerusalem, February 22, 2018. (Hadas Parush/Flash 90)

Rothman’s proposal and that of the Religious Zionism party for overhauling the judicial selection process is to radically alter the composition of the judicial selection committee, so that the government would nominate six of the nine committee members.

Rothman argues that such a selection system would give elected officials control over the process and ensure the ensuing makeup of the bench would better reflect and represent the will of the people.

“The majority of the people in Israel will have the power to appoint judges, just like any other country around the world,” asserted Rothman, arguing that in many countries, such as the US, judges have no say over whom they share the bench with.

Another central reform that Rothman and Religious Zionism say they will enact is to establish limitations on the legal standing of who can petition the courts against government actions. Many court challenges against West Bank building or religion and state issues come from interested, but unaffected, third parties, such as anti-settlement watchdogs petitioning on behalf of Palestinian land owners.

A banner protesting the High Court of Justice, which has ordered the demolition of an illegal outpost, hangs in the Etzion Bloc of West Bank settlements on December 8, 2016. (Gershon Elinson/Flash90)

Rothman claims the system enables judicial activism against the government and legislature.

“You see this a lot in Judea and Samaria,” he said, using the biblical term for the West Bank.

“Show me that some of your rights were infringed by this law,” he added, pointing to the legal challenges to what was known as the Settlements Regulation Law passed in 2017 which would have allowed for the retroactive legalization of settlements built on private Palestinian land. The law, which the attorney general had warned MKs might not stand up in court, was indeed struck down by the High Court in 2020, in response to a petition by Adalah, an Israeli group which advocates for Palestinian and Arab civil rights.

“The people who challenged the law did not need any proof they were affected by it,” he said.

“In the Supreme Court, in the US, there is a clause in the constitution that the court will deal with cases and controversies. In Israel, there is no case, no controversy, and the courts decide.”

Protesters gather outside the Supreme Court in Washington, June 24, 2022 (AP Photo/Jacquelyn Martin)

But Rothman, Smotrich and the Religious Zionist party want to go further. Under the legal reforms platform the party published last week, a High Court override bill would be passed that would enable the Knesset to re-legislate a law that the High Court struck down for contravening Israel’s basic laws.

And the Knesset would be able to do so with a bare majority of just 61 MKs, meaning that no opposition members would be needed at all to override the High Court.

Additionally, the High Court would only be able to strike down legislation if a panel of all 15 judges unanimously ruled that the law in question contravenes a basic law, which is an extremely high bar.

Rothman pointed out that there is no law that explicitly allows the High Court to exercise judicial review over legislation.

“There is no basic law which is stronger than regular laws that are passed.”

The MK noted that judicial review was only established when former Supreme Court president Aharon Barak ruled in 1992 that Israel’s basic laws had a semi-constitutional status, creating a rubric by which to judge new laws against. But Israel has never had an actual constitution.

“There is no basic law which is stronger than regular laws that are passed. A constitution for the State of Israel that limits the power of the parliament has never been made and the court has usurped power and acts not as a court but as the parliament,” argued Rothman.

Asked whether the changes envisaged by his party would remove the checks and balances from Israel’s system of government which currently protect minority rights, Rothman insisted that courts are not needed for such a purpose.

He argued that the courts in countries such as the UK, Netherlands, and elsewhere do not have the right to strike down legislation and that minority rights in such countries have nevertheless been upheld.

When challenged that the Netherlands has a constitution dating back 200 years and Great Britain a Bill of Rights dating back 300 years, and that Israel does not have a formal constitution, Rothman insisted that majority rule was sufficient to protect minority rights in a Jewish state.

“The Jewish people had democracy way before Great Britain had democracy and Israel is the nation-state of Jewish people,” he claimed, without clarifying the historical basis for the first part of that statement. “We have practiced democracy more than any other country, and we know how to make a decision according to a majority vote.”

Rothman was asked about legislation passed in the early 2010s that had forced African asylum seekers into open detention centers indefinitely, with Israel unwilling to absorb them and unable to deport them.

African asylum seekers and migrants at the Holot detention center in southern Israel, February 17, 2018. (Tomer Neuberg/FLASH90)

The High Court struck down the legislation in 2014 for disproportionately violating the fundamental rights of liberty, freedom of movement and autonomy to such people, as laid out in Israel’s Basic law Human Dignity and Respect.

But Rothman said the court should not have intervened, as it was the right of the majority to determine the laws of the country.

“The majority will defend human rights much better than the judiciary.”

“[We are talking about] an unelected official who has zero accountability to the public but who has the power to decide against the majority of the public based on his own ideas of human rights,” said the MK.

“The majority will defend human rights much better than the judiciary.”

Compromise, not concentration

Many of Rothman’s criticisms of the court and the judicial system are familiar to Sa’ar, a one-time Likud stalwart who still hews to right-wing positions. He disagrees, however, with the Religious Zionism MK’s proposed solutions, which he described as radical rewrites that would strip the judiciary of independence and “destroy” Israeli democracy.

“The opposition aren’t conservatives, they are anarchists and revolutionaries who want to wipe out the existing system and replace it with something new,” he claimed.

As justice minister for the past year, Sa’ar had trouble pushing through many of his priorities, but did manage to insert a measure of transparency into the judicial selection process by making hearings for Supreme Court appointments public. This addressed right-wing concerns that the appointments process was prone to inside deals and too open to manipulation by the legal establishment.

While he previously shared concerns over the court being packed with liberals, he says his 2008 push to give elected officials more say over High Court appointments resulted in “gradual but substantive change” to the makeup of the court.

Minister of Justice and leader of the New Hope party Gideon Saar seen with party supporters during a New Hope party conference in Modi’in, December 5, 2021. (Tomer Neuberg/Flash90)

“This change allowed more varied, heterogeneous and balanced judges to get appointed to the High Court because to get to this majority, you need compromises from all sides,” Sa’ar told The Times of Israel.

But giving the government complete control over the judicial selection process would “totally politicize” the court and place the judiciary under the ruling regime’s thumb.

“This proposal will give the government control over the High Court and this is a dangerous concentration of powers in the hands of the executive and more accurately in the hands of the head of the executive, i.e., prime minister,” asserted Sa’ar.

This is not the reform of the system but the destruction of the system…of the State of Israel’s democratic system.

Asked about whether the will of the majority is insufficiently heard in the judicial selection process, due to the minority of elected officials involved in it, Sa’ar responded indirectly that the answer to such a concern would be to directly elect judges.

And he also rejected arguments made by Rothman and others citing the US example of judges selected solely by politicians, pointing out that the US also has a written constitution which protects the rights of citizens.

“They are taking just one component, the one which gives power to the executive, but they don’t want to have the same components which give power to the citizen,” says Saar.

Adding the ability of the Knesset to override High Court decisions with a simple majority of just 61 MKs would wreak further damage on Israel’s system of checks and balances, argued Saar.

“The combination of total control of the judges with the total ability to change every ruling will leave all the power in our system of governance in the hands of the executive. This is not the reform of the system, but the destruction of the system — not only of the justice system but of the State of Israel’s democratic system,” he said.

Israeli Minister of Justice Gideon Sa’ar attends a ceremony at the Ministry of Justice in Jerusalem, June 28, 2021. (Yonatan Sindel/Flash90)

The minister describes himself as a conservative opposed to judicial activism and who wishes to see as little court intervention into government activity as is possible.

Sa’ar agrees with Rothman on the need for legislators to be able to override High Court decisions, but he believes it should only come with a special majority of 65 MKs. He also wants to raise the bar and require a two-thirds majority of justices for the court to be able to strike down legislation.

Such reforms should only come via a new basic law, Sa’ar said, which would enshrine the principle of judicial review in the Israeli legal system while addressing right wing concerns of judicial overreach.

“The judicial system shouldn’t easily be able to overturn a Knesset law, and the Knesset shouldn’t easily be able to annul a decision of the High Court,” he said.