Israelis Outraged with Proposed Judicial Reforms

Israel’s Knesset (Wikipedia)

Thousands of Israelis went out in the cold of Tel Aviv Saturday night to protest against a proposed new reform to Israel’s entire judicial system. The reforms were revealed in a press conference held by Israel’s new Justice Minister Yariv Levin and include changing the current system of selecting new judges, passing new laws to limit the power of Israel’s Supreme Court to overturn laws passed by the Knesset and also limiting the powers of Israel’s Attorney General whose Hebrew title literally means “Legal Advisor to the Government.”

It is the second proposal that is getting the most attention and condemnations from former Israeli supreme court ministers to legal scholars and opposition politicians alike. The main critique is that these reforms would undo Israeli democracy. Israel’s former Chief Justice Aharon Barak, Barak, who served in that capacity from 1995 – 2006, is one of the judges whose decisions increased the court’s powers to the objections of many Israeli politicians.

And he is now one of the most vocal opponents of the reforms saying they would these changes would turn Israel into a “phony” democracy like Poland and Hungary where democratically elected governments gave themselves more powers that allow them to suppress opposition. He said that any democratic nation needs a court that can reign in the government when it violates democratic principles and this would be impossible if the Knesset could simply override a Supreme Court decision.

The reason so many see this as an attack on Israel’s democracy is that the proposal would, critics say, end any form of judicial review in the country. This is because Israel’s new coalition government is proposing what they call a “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.

Now, an Israeli coalition government can only be formed by a majority of the 120 members of the Knesset. And today in Israel a new law of government – this is called a “Basic Law” – can only be passed by an absolute majority of 61 Knesset members. Such a law would need to be passed for any of the proposed reforms to take effect and it is not likely that Prime Minister Benjamin Netanyahu’s government will have any problem getting such a majority. However, the new laws, if passed, could be repealed by another vote in a future Knesset.

The problem here is that Israel does not have a written constitution that outlines the exact powers of the Knesset vs the judiciary. It also has just one house of parliament – no senate – and the government is comprised of members of the Knesset. So, who decides what is or is not the authority granted to the courts and could the Supreme Court eventually override such a law as being something that contradicts Israel’s nature as a democratic society?

Minister Levin rejected the claims of the opposition that his proposed reforms would harm democracy in Israel, but would in fact do the opposite. As he sees it, the courts in Israel have taken upon themselves too much power to overturn laws passed by the Knesset or actions taken by the government. Again, unlike in the US, without a written constitution delineating the exact powers of government, there are many “blanks” that needed to be filled in over the years and Levin asserts that the Knesset is empowered to reject court decisions by simply passing new laws.

“The increasing intervention of the courts into the laws passed by the Knesset,” claimed Levin at his press conference. “It has caused a degradation in the public faith in the court system to a dangerous low.”

“Time after time people we didn’t elect to decide [laws] for us,” added Levin implying that the current system in which Israel’s High Court overturns laws in the absence of any law passed by the Knesset empowering it to do so is what is undemocratic.

“This is not democracy,” he declared.

Prime Minister defended the proposed reforms at the start of his weekly cabinet meeting on Sunday saying, “The justice minister presented the first stage of the planned reform. The claim that this reform is the end of democracy is baseless.”

Netanyahu also released an official statement saying, “The truth is that 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 asserted that the reforms will merely “restore the correct balance between the branches” and that doing so “is not the destruction of democracy, but the strengthening of democracy.”