Israel in an Uproar Over Proposed Judicial Reform by Netanyahu Gov’t

Hysterical reactions from political opposition and media, but planned judicial reform will bring Israel more in line with Western democracies.

By Gil Tanenbaum | | Topics: Benjamin Netanyahu, Democracy
Justice Minister Yariv Levin announces sweeping judicial reform that will ensure proper separation of powers in Israel.
Justice Minister Yariv Levin announces sweeping judicial reform that will ensure proper separation of powers in Israel. Photo: Kobi Richter/TPS

(TPS) Israel’s Justice Minister Yariv Levin held a national press conference Wednesday night in which he unveiled the new government’s plans for dramatic judicial reform, which he said was intended to “save” Israel’s democracy. The proposed changes include limiting the Supreme Court’s ability to strike down laws passed by the Knesset, altering the relationship between the Attorney General and the government, as well as democratizing the process by which judges are selected.


Separation of powers

During his remarks, which began shortly after the start of the 8 PM evening news programs of Israel’s three broadcast channels – all have high viewership – Levin spoke of his intention to ensure the separation of powers and equal authorities of Israel’s three branches of government: the Knesset, the Government and the Judiciary.

In doing so he declared the Cabinet of Israel its own entity separate from the Knesset, similar to the American system of branches of government. But Israel has no written constitution as the US has, which is part of the problem that Levin said he wishes to address by passing new laws setting boundaries between the branches of government.


Putting checks on the Supreme Court

Levin announced plans to change the nominating process for judges, which will shift power from representatives of the legal system to members of the Knesset and government ministers. Today, a committee comprised of judges and members of the bar select new judges behind closed doors, and the government is expected approve those choices.

“No longer will judges select themselves,” declared Levin.

According to the proposed reform, the selection committee will include two representatives chosen by the Justice Minister, instead of by what Levin called the “sectoral” bar association.

Levin said that this reform will strengthen the judicial system and “return the public trust to it.”


Returning power to the people

Levin also spoke of the government’s intention to enact a controversial “Supremacy Clause,” which would empower the Knesset to overturn Supreme Court rulings that nullify Knesset or government decisions, as long as they pass with an absolute majority of 61 out of 120 MKs.

Supporters of this clause say Israel’s Supreme Court takes a highly activist approach compared to supreme courts in other western democracies, and tends to interfere and overturn decisions made by elected officials.

The new “Supremacy Clause,” they argue, will balance this situation.

Opponents say the clause will practically nullify the court’s authority.


Restoring faith in democracy

In announcing all this, Yariv Levin rejected assertions that these reforms will harm Israel’s democracy. Quite the opposite: Levin declared that all of this will restore the Israeli public’s faith in their democracy.

Levin stated that all of Israel’s democratic institutions rely on public faith.

“The increasing intervention of the courts in the laws passed by the Knesset,” he claimed, “has caused a degradation in the public faith in the court system to a dangerous low.”

“Time after time people we didn’t elect decide [laws] for us,” added Levin, implying that what’s undemocratic is the current system in which Israel’s Supreme Court overturns laws even though it has never been empowered to do so by the people (ie. Knesset).

“This is not democracy,” he insisted.


Curtailing judicial subjectivity

Another crucial part of the reform Levin presented is the so-called “Probability Cause,” which allows judges to overturn Knesset laws and government decisions based on what they deem “probable” or “un-probable.” The reform would prevent this.

Levin and supporters of his reform argue that legal decisions must be made based on specific guidelines, rather than the judges’ subjective views.


Restraining the Office of the Attorney General

Levin was expected to propose splitting the position of Attorney General. Israel is one of only a few democracies in which the Attorney General also serves as the government’s chief legal counsel. As a result, the Attorney General’s decisions are binding, rather than being regarded as recommendations.

But Levin went further.

The Attorney General in Israel is called in Hebrew the “Legal Advisor” to the government. Levin wants this to now be literal and see the post limited to giving advice and legal opinions alone.

“No longer will attorney generals be able to tell the government what to do, they are advisors and work for the government, not the other way around,” he explained. So, instead of splitting the post into two or more jobs, the Justice Minister intends to push through new laws to restrain the powers of the Office of the Attorney General.

“The government will govern, the advisor will advise and the judges will judge,” he declared.


Fierce opposition

Levin has advocated legal reform for 20 years, including prior to his election to the Knesset. His plan enjoys the support of all the parties in the governing coalition, but has generated fierce criticism from the Left and from within the legal system itself.

Benjamin Netanyahu’s coalition government holds a 64 to 56 majority in the 120-seat Knesset. Any law of government – known as a “Basic Law” – must receive 61 votes, an absolute majority, to pass. This is not expected to be a problem for the current government.

But the reforms could always be rescinded by a future government with a 61 majority vote.


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