Israel Supreme Court Jerusalem (Wikipedia)
According to police estimates, as many as 80,000 people jammed Tel Aviv’s Habima Square Saturday night in spite of the cold weather and rain to protest Benjamin Netanyahu’s coalition government’s proposed judicial reform plan which would dramatically curtail the powers of Israel’s Supreme Court and attorney general.
The government insists that its reform plan is needed to reestablish democracy in Israel by “restoring” powers to the democratically elected Knesset and government. Detractors of the plan say that it would actually destroy Israel’s democracy by making the government an elected dictatorship with no check on its powers.
This dispute has arisen primarily because, unlike nations such as the U.S., Israel has no written constitution that formally delineates the powers of Israel’s different branches of government. Israel has never had an official system of separate branches of government with checks and balances on one another. As a result, Israel’s Supreme Court has stepped in over the years to fill in the gaps to decide what a government is or is not empowered to do.
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But the Knesset is empowered to pass laws of government. These laws set the rules for the country’s elections system, the powers of the cabinet ministries, and more. So, the current government holds that it has the power – and the mandate – to pass new laws of government to set the official boundaries on the powers of the court and, the government. Such laws need to receive an absolute majority of 61 out of the 120 members of the Knesset to pass, not a simple majority of those voting.
Opponents of the judicial reform believe that because Israel has no written constitution, and because there is no separation between the government and the Knesset, there is an absolute need for the courts and the attorney general to be independent so that they can serve as a check on the government. They point to the fact that in Israel there is no separation between the government and the parliament as there is in America, and that there is no senate to advise and consent on judicial appointments. As such, the country needs a court and AG with such powers.
So, what exactly are the proposed reforms?
On January 4, Justice Minister Yariv Levin (Likud) unveiled a dramatic plan to alter the very nature of Israel’s justice system. The plan includes passing new laws to restrict the authority of Israel’s Attorney General. The AG’s official title in Hebrew means “Legal advisor to the government.” But over the years the post has acquired its own powers and Israel’s attorney general does not simply give legal opinions. His “opinions” on what a government may or may not do, today have the force of law and a government of Israel is expected to obey them.
Levin’s plan would set the powers of the attorney general in law. The AG would then only be an advisor and a government would not be bound by his legal opinions. Supporters of this change point to the fact that no law was ever passed by the Knesset giving the position the broad legal authority over the government it now has. These powers came over time and were enshrined after rulings of Israel’s Supreme Court. Proponents of the reforms say that having an un-elected attorney general empowered to tell the elected government what it may or may not do – and only holding such authority because of court rulings – is inherently undemocratic.
The plan would also change the system of how judges are appointed in Israel. But the measure that has caused the greatest controversy is the proposal for a new law that would allow the Knesset to override Supreme Court rulings that nullified laws or prohibited certain actions made by the government. This, detractors say, would make the court meaningless and allow whoever has a majority in the Knesset to basically do whatever they want with no one empowered to stop them from suspending democracy as has happened in countries like Hungary.
The reform is so controversial that even President of Israel’s Supreme Court Esther Hayut Thursday took the unprecedented step of publicly rebuking the government and condemning the reforms. She did so while addressing the annual convention of The Israel Association of Public Law held in Haifa.
Hayut echoed the complaints of Israel’s opposition leaders and said that the reforms would irreparably harm Israel’s democracy.
She lamented to the fact that 2023, which will see the 75th anniversary of Israel’s independence, will not be a year of celebration saying, “The 75th anniversary will be remembered as the year in which Israel’s democratic identity suffered a fatal wounding, instead of a year to celebrate its democracy.”
The Supreme Court President also dismissed the claims made by Prime Minister Netanyahu and his government’s leaders that the reforms would restore majority rule in Israel and therefor strengthen its democracy, which they say has been harmed by the court taking upon itself more powers.
“Democracy is not just the rule of the majority,” she said, and “anyone who says that the majority of voters gave their Knesset representatives a blank check to do whatever they want uses the word democracy falsely.”
“The meaning of this reform is a change to the democratic identity of the State (in such a way) that it will be unrecognizable.”
Leaders of the opposition applauded Hayut for her speech, while members of the government condemned her for it.
Israel’s Finance Minister, who also leads the right-wing Religious Zionism Party, said, “President Hayut’s speech only proves the necessity of the reform to fix the legal system and strengthen Israeli democracy.”
“The arrogance, the demagoguery, the digging in of positions,” he added, “the intolerance, the shallowness of the arguments and the rejection of every shred of criticism – as we now also heard in the speech, brought the public’s trust in the justice system to a low.”
Now Israelis wait to see if the court will strike down any of the new laws passed by the Knesset before Netanyahu’s government was sworn in so that he could ensure the support of the smaller coalition partners. One such law allowed for Aryeh Deri, the leader of the Sephardic ultra-orthodox Shas Party, to serve again as a cabinet minister; even though, he was convicted of a felony for the second time less than a year before his new appointment.
Israel’s Supreme Court is currently deliberating a challenge to Deri’s appointment. Should it rule to negate it, the government will be sure to immediately pass a new law allowing it, thereby causing a constitutional crisis in a nation with no formal constitution.
