This past Saturday night, more than 100,000 people gathered on Tel Aviv’s Kaplan Street and at Habima Square to protest the government’s proposed overhaul of the judicial system. Thousands more rallied in Jerusalem, Haifa, Beersheba, and other cities throughout the country.
The plan, which Justice Minister Yariv Levin announced earlier this month, would weaken Israel’s Supreme Court by significantly limiting its power to review laws and strike them down, among other changes.
“Now is the hour of darkness,” Israeli author David Grossman told the crowd at the Tel Aviv rally. “Now is the moment to stand up and cry out: This land is in our souls. What happens in it today, will determine what it will be and who we and our children will become.”
When he announced the reforms, three weeks ago, Justice Minister Levin claimed that the Supreme Court’s “growing intervention…in cabinet decisions and Knesset legislation” had ruined public trust in the legal system, leading to “severe damage to democracy.”
“We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us,” Levin said. “Many sectors of the public look to the judicial system and do not find their voices heard. That is not democracy.”
In response to the public outcry and the protests, Prime Minister Benjamin Netanyahu has repeatedly said that he received a mandate in November’s election to enact the controversial reforms.
Avi Himi, chair of the Israel Bar Association, told the rally-goers: “You never got a mandate to change the regime, you never got a mandate to destroy democracy. It’s our right to scream, it’s our obligation to scream, that’s how it is in a democracy.”
With all of the noise coming from Israel on the planned judicial overhaul and the protests, we wanted to get to the root of what is really happening. What exactly is in the reforms and what is this crisis really about?
What are the judicial reforms?
Let’s start with the basics. What exactly are the reforms the government is proposing? There are four components:
The Knesset would be able to override Supreme Court decisions with a simple majority of 61 votes out of the 120-seat Knesset.
Currently, the Supreme Court can strike down any law it finds to be unconstitutional. With this change, the Knesset could overrule that decision and pass the law with the smallest majority.
Test of reasonability:
The Supreme Court would no longer be able to judge Knesset legislation, appointments or other government decisions on the grounds of “reasonability.”
The Supreme Court employed this standard just this past week when it ruled that Netanyahu’s appointment of Aryeh Deri as a minister was “highly unreasonable” due to his past criminal convictions, most recently in January 2022.
Another example, as Haaretz reports, was in 2007 when the Supreme Court ruled that the government’s decision not to reinforce classrooms in Sderot against missile attacks was “unreasonable,” as it took too long for students to run to a bomb shelter. The court ordered then-President Ehud Olmert to immediately reinforce the schools.
The reforms would also change how Supreme Court justices are selected and give the ruling coalition effective control of appointing them.
Currently, judges are chosen by a committee of nine members: three Supreme Court judges (including the Supreme Court president), two representatives of the Israel Bar Association, and four members who are elected representatives (two ministers and two Knesset members).
Under the reforms, the two representatives from the Israel Bar Association would be replaced by two “public representatives” chosen by the justice minister. This would give the sitting government a majority of the votes for selecting judges.
The plan also includes changing the law so that government ministers would be able to appoint their own legal advisers, which is not in their authority today. The legal advisers would also lose the ability to make binding decisions, and would only be able to issue advice.
Levin said that these proposals are “the first stage” of his planned reforms and that further changes would be enacted later on.
Diversity of perspectives: End of Israeli democracy or needed reforms?
“We received a clear and strong mandate from the public to carry out what we promised in the elections, and we will do so. This is the realization of the voters’ will, and this is the essence of democracy,” Prime Minister Netanyahu said at a recent cabinet meeting.
He added that “the claim that this reform is the end of democracy is baseless,” insisting that the plan would actually strengthen democracy.
“The balance between the branches in the governmental system has been violated over the last two decades, and even more so in recent years,” Netanyahu argued, adding that the reforms would “restore the correct balance between the branches.”
On the other side, opposition leader and former Prime Minister Yair Lapid said that the plan is “extreme regime change” that would destroy democracy.
Meanwhile, former Defense Minister Benny Gantz accused Netanyahu and his coalition of carrying out “a constitutional coup” and undermining “the most foundational values” in Israel’s Declaration of Independence. He urged Israelis to take to the streets, adding, “This is not a civil uprising — it is a civil duty.”
Supreme Court President Esther Hayut also decried the reforms, saying they would “crush” the judicial system and deal a “fatal blow” to democracy.
Hayut rejected the government’s claim that it was acting according to the will of the majority, saying: “Anyone who claims that the majority who elected their representatives to the Knesset thereby gave them an ‘open check’ to do as they please, bears the name of democracy in vain.”
She explained that the court is tasked with protecting human rights in Israeli society, to ensure that “the rule of the majority does not turn into the tyranny of the majority.”
The reforms would take away the court’s ability to nullify laws that disproportionately harm individual rights, she explained.
Former Supreme Court President Aharon Barak went even further, saying in interviews on Israeli TV and radio that Levin’s reforms were “a string of poison pills” that would mark “the beginning of the end of” Jewish sovereignty.
“If putting me to death would put an end to this drastic shake-up, I’d be prepared to go before a firing squad,” Barak declared.
In response to Barak’s comments, Justice Minister Levin said that the former Supreme Court president “does not understand the essence of democracy” and that his views “fundamentally contradict democracy. As things stand, all power rests with the judges and they decide what’s proportionate and reasonable. That’s not democratic.”
In a piece for Commentary Magazine, Elliott Abrams, chairman of the Tikvah Fund, agreed that Israel’s Supreme Court has grown overly powerful.
“In America, our Supreme Court justices are chosen by politicians: the president and the senators. But in Israel, they are chosen by the sitting justices themselves and lawyers from the bar association,” Abrams wrote.
Plus, he argued, the fact that Israel has no written constitution calls into question “the juridical and moral basis for Supreme Court rulings declaring Knesset decisions ‘unconstitutional.'”
Meanwhile, in a Times of Israel op-ed, Yonatan Green, executive director of the Israel Law and Liberty Forum, argued in favor of the reforms.
“A closer look at the proposed reforms reveals a measured, justified and indeed a patently democratic response to decades of illegitimate judicial overreach,” he wrote, adding that the changes “hardly warrant a collective panic attack.”
“The real democratic deficit,” Green continued, “can be found in the past 30 years of judicial supremacy, whereby the court may ‘override’ the Israeli parliament and has final say on any matter it chooses, despite no actual constitutional anchor enabling such authority.”
Professor Moshe Koppel, chairman of the Kohelet Policy Forum, agreed that there should be greater limits on the Supreme Court’s authority. He argued that Israel’s Supreme Court has powers, such as the ability to vote on appointing judges, that few other courts around the world have.
But others like Amir Fuchs, senior researcher at Israel Democracy Institute, argued that the reforms would unbalance Israel’s sensitive system, which has just a few checks in place.
“[Israeli checks and balances] are weak as it is, we don’t have bicameral parliament,” he told the Jerusalem Post. “The checks and balances that we have on the power of the central regime are very weak.”
Yaniv Roznai, co-director of the Rubenstein Center for Constitutional Challenges at Reichman University, agreed that passing the reform “would result in a government that has a blank check to do what it wants…. You have no check whatsoever of the power of the coalition.”
Opponents of the reforms also say they would help Netanyahu evade conviction in his ongoing corruption trial.
“Netanyahu is less worried about the rule of law than the court of law, where he is on trial on charges of bribery, fraud and breach of trust. His zeal for judicial reform apparently began in 2016 when police began investigating him for corruption,” journalist Douglas Bloomfield wrote sarcastically in the Jerusalem Post.
An Israel Democracy Institute survey published last week found that a majority of Israelis (57%) support the Supreme Court’s authority to strike down laws passed by the Knesset “if they are found to be contrary to the principles of democracy.”
Originally Published Jan 27 2023 07:08PM EST
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