The proposed legislation evicerates the only check on executive and legislative power in Israel
Almost immediately after the new government was formed in Israel, on Jan. 11, 2023, Justice Minister Yariv Levin published a draft bill which seeks to overhaul the country’s judicial system. While Levin presented the bill as only the first stage in his project to reform the judiciary, the bill constitutes a substantial revolution in the checks and balances between the branches of government.
Levin’s bill includes several major changes to the composition and authority of the judicial branch in Israel. First, the proposal aims to change the appointment process of judges from one that requires a compromise between the ruling coalition and the justices, to a system where the ruling coalition will have exclusive authority over their appointment. Second, the proposal seeks to place major limits on the Supreme Court’s ability to strike down legislation, requiring a special majority of 80% of the justices in order to invalidate a statute (as opposed to the current regular majority). In addition, the bill seeks to enact an override clause that would allow a bare Knesset majority (61 out of 120 members) to reject court rulings.
It must be stressed that this current debate is not about the court’s striking down of a specific law, but rather about the court’s authority to do so in principle. The reason that hundreds of thousands of protestors are in the streets of Jerusalem and Tel Aviv resisting this bill is because it presents a choice over Israel’s future. The questions up for debate in the bill are not new: What is the appropriate way to select judges? Should the court have the power to strike down legislation? Should the Knesset be able to override the court, and how easily?
Anyone who is familiar with the Israeli Supreme Court knows that the first argument is simply false. Since 1997, the court has struck down Knesset legislation a total of 22 times. In most cases, it has only struck specific sections of a law. This, by any comparative standard, is not a large number. The court intervened in cases in which the infringement on rights protected by the the Basic Law: Human Dignity and Liberty — one of the 13 quasi-constitutional laws that are derived mostly from liberties outlined in the Israeli Declaration of Independence — was clear.
In the Disengagement Case (2005) the court declared that the compensation that the government offered to Israelis evacuated from the Gaza Strip was too low, and violated their private property rights. In a separate case, the court struck down a law that granted tax benefits to a Jewish border locality, but not to a nearby Arab locality — since this violated the principle of equality that is a matter of human dignity and a right protected by law.
In three cases decided in 2013-2015, the court struck down a law that allowed illegal immigrants, who for various reasons could not be deported to their country of origin, to be held in detention without trial for more than three months. And the court set off a political firestorm in September 2017 when it struck down the mass exemption of ultra-Orthodox men from military service due to their yeshiva studies, saying that it was a violation of the principle of equality as all other Jewish young men and women are required to serve in the IDF.
As these examples show, the court intervened mostly in cases where it assessed that there is a clear violation of a protected right, which is the reason that courts have the authority to strike down legislation in the first place. The Supreme Court is not a radically progressive body. Sometimes it strikes down laws passed by the majority. Given that in the 26 years since 1997, the right wing has been in power in Israel for most of this time, it follows logically that more of its laws have been rejected by the court.
The second argument that supporters of the judicial reform promote is that the bill merely adjusts the relationship between the branches of government to conform with that which prevails elsewhere in the world, and especially the United States, where it is elected representatives who select judges and hold the last word. This argument completely ignores the fact that Israel’s political structure is unique in the democratic world.
In Israel, political power is concentrated in a single place: the governing coalition. The coalition in practice controls the government (what in American terms would be considered the executive branch) and the Knesset (the legislative). There is no division between the prime minister and the legislature. Israel is not a federal state, and local government is very weak. The country is not part of some supranational organization such as the European Union and has not joined any international court. Unlike the United States, Israel does not have a legislative check on executive power. Its judicial check, the Supreme Court, is what is up for debate with the proposed judicial reforms.
The result is a situation in which all political power rests in the hands of a very small group: the heads of the coalition factions, who reign supreme over their parties, and in fact leave very little room for the discretion of other members of government and the Knesset. Whenever this small clique — numbering seven men in the current Knesset — reaches agreement about some matter, there is no political force that can stop them.
In the face of this overwhelming concentration of political power, stands the Supreme Court, the sole (judicial) check on executive power with its authority to strike down laws. This authority is exercised with great restraint.
In effect, Levin wants to remove this judicial restriction as well. He proposes a format for selecting judges in which it is the reigning coalition that does so. He proposes that a simple majority (2 to 1) of the Knesset be able to override any Court decision to strike down a law. In fact, he offers a system in which there will be no checks and balances on the power of the majority.
What is particularly dangerous about this proposed legislation is that the supporters of the reform want to do all this with lightning speed, evidently out of concern that the public will realize the dangers of these moves and organize to oppose his proposed legislation.
Over the years, Israel has succeeded in maintaining the balance between its Jewish and democratic identity and to safeguard civil rights, even in the face of security threats. To no small extent the country has done so thanks to an independent Supreme Court.
Levin’s attempts to curtail the court’s power places these achievements in serious jeopardy.
This article was originally published in the Forward.