The Judicial Overhaul

Israel’s decision-making in the current conflict must be understood in the context of its government’s complex institutional structure related to war.

On November 5, 2023, Minister of Justice Yariv Levin notified the High Court of Justice that he will convene the Judicial Selection Committee within 15 days. Selecting judges is not possible in such a short time frame, so we will have to wait and see whether this decision leads to the completion of judge appointments to the vacant positions.

Justice Hayut's retirement from the presidency of the Supreme Court was well-known in advance, however, the Minister of Justice's refusal to convene the Judicial Selection Committee leaves Israel with a temporary replacement during a national emergency.

As we mark the 30th anniversary of the Oslo Accords this month, a larger share of Jewish respondents think it was incorrect to enter into that process, while the percentage of respondents who selected "don't know" was exceptionally large. 

On the question of Unreasonableness, it appears that the dispute is not only between the Knesset and the Supreme Court, but also among the justices themselves. There are many possibilities, but only one ruling, which will be handed down no later than mid-January 2024.

Yohanan Plesner, president of IDI and Prof. Yuval Shany, a Senior Fellow at the Center for Democratic Values and Institutions met with reporters to discuss the historic Supreme Court hearing on the repeal of the reasonableness doctrine.

Three petitions before the Israeli Supreme Court are transforming the usually slow month of September into a pivotal one in Israel’s ongoing judicial crisis.

41.5% of coalition voters and 6% of opposition voters said that the Court lacks the authority to perform judicial review over Basic Laws passed by Knesset. 73% of Israelis agree that in order to bridge the divisions between the political camps, attempts should be made to reach a compromise. 

On September 12, 2023, an unprecedented panel of 15 Supreme Court Justices will convene to hear petitions requesting to strike down the recent amendment to the "Basic Law: The Judiciary."

The Judicial Selection Committee has not met for more than a year, and during this period, various positions held by judges have been vacated.

In the second part of this two-part episode, Jack Omer-Jackman speaks to renowned Israeli legal scholar and IDI expert Professor Yuval Shany to discuss the Supreme Court’s upcoming deliberations on the legislation annulling reasonability; the significance of basic laws; the impact of reservists’ protests on Israel’s military preparedness and the role of a citizen army in a democracy.

In the first part of this two-part episode, Jack Omer-Jackman speaks to renowned Israeli legal scholar and IDI expert Professor Yuval Shany to discuss the Supreme Court’s upcoming deliberations on the legislation annulling reasonability; the significance of basic laws; the impact of reservists’ protests on Israel’s military preparedness and the role of a citizen army in a democracy.

Earlier this year, we published an article warning against the dangers of the judicial reforms, to our regret, many of the negative developments about which we warned at the beginning of the year have already come to pass.

Israel’s political system remains in turmoil as the Supreme Court prepares to hear appeals concerning the refusal of the Justice Minister to convene the Judicial Selection Committee and the constitutionality of the unreasonableness amendment at the beginning of September.

In an effort to create uniformity, populists are ready to destroy the state.

The July 2023 edition of the Israeli Voice Index finds that 58% of Israelis believe the country is in a "state of emergency." Only a small minority of Israelis believe that IDF reservists, who fail to report for duty in protest of the judicial overhaul, should be dismissed.

Prof. Karnit Flug, IDI's VP of Research, William Davidson Senior Fellow and a former governor of the bank of Israel offers data on the current effects of the controversial judicial overhaul and projections for more ripples as the high tech industry begins to unravel. 

Comparing Israel's Supreme Court to America's Supreme Court. 64 Israeli legislators, a slim majority of the Knesset, voted on Monday, July 24, to amend one of Israel's Basic Laws, and in so doing, they took away the Israeli Supreme Court's ability to strike down decisions that it finds "unreasonable in the extreme.

The term "incapacitation" refers to a situation in which a government official is unable to perform their duty. The previous version of the law did not detail what constitutes incapacitation, nor who is authorized to declare incapacitation. The current version is accused of being personal and political.  

When Israeli liberals depend solely on the Supreme Court for checks and balances, they are taking a big risk. It is essential to add veto points as human rights in Israel should not depend on the Supreme Court alone - decentralization of government is key. 

Yohanan Plesner, president of the Israel Democracy Institute, joins Haaretz Weekly host Allison Kaplan Sommer to discuss what comes next, after the Knesset passed the first law in its planned judicial overhaul. 

This paper seeks to elucidate the economic consequences of the judicial overhaul. It approaches the topic through the lens of the new institutional literature in economics, which has extensively addressed the link between democratic institutions and the economy in recent decades.

On Monday, the Knesset voted 64-0 to amend the Basic Law governing Israel’s judiciary and strip the Supreme Court of its power to block government decisions on the basis of the standard of “extreme unreasonableness.”  The decision has potentially fateful consequences because of its immediate implications,

The coalition launched the first stage in its judicial overhaul. The process by which the amendment to the Basic Law: The Judiciary was passed, releasing the government and its ministers from the duty to act with reasonableness, is the best possible evidence for what we can now expect.

The first phase of Israel's judicial overhaul is now law. Huge numbers of people are in the streets, reservists are resigning, the stock market is tanking, and Lawfare Editor-in-Chief Benjamin Wittes assembled an all-star panel to talk about it, including IDI's Prof. Amichai Cohen and Prof. Yuval Shany. 

The protest by reserve soldiers has sparked a fierce political and public debate in Israel. Who are these reservists, what are their motivations and what are the implications of their choice? Find the answers here. 

The Israeli governing coalition is now “only” trying to strip the Supreme Court of its power to conduct reasonableness review of cabinet decisions.

With the Knesset set to hold its final vote on curtailing the “reasonableness standard,” what happens next? What are the implications of removing this type of oversight on governmental decisions, and is there still a possibility for compromise ahead of the vote?

Tel Aviv-based journalist and Israel Policy Forum Policy Advisor Neri Zilber hosts Prof. Suzie Navot, the vice president for research at the Israel Democracy Institute, to analyze the renewed push by the Netanyahu government to overhaul Israel's judicial system.

The law is clear. The Minister is obligated to convene the committee when judicial vacancies appear. By evading this responsibility, he is failing in his duty.

The protest against the government legislation is clearly covered by the protections granted by international law to the right to assembly. The position of the Attorney General of Israel strikes an appropriate balance between exercising the right to demonstrate and protecting competing rights and interests. 

Almost a quarter of Israelis have participated in some form of protest, a majority assess that the protest movement has delayed the progress of the judicial overhaul and Likud voters are divided on the question of continuing its implementation. 

Only a government that wishes to make extremist and corrupt decisions would be afraid of the reasonableness test. While the test would certainly benefit from discussion of the framing of its boundaries and application, the legislation currently on the table hands the government unrestrained power.

The Authority for the Advancement of Women's Status and agencies like it are being gutted along with protections for women

In Israel, the equivalent of 70 million Americans have gone out to protest the Netanyahu government's attempt to break the country's constitutional order. Populist politics is at war with the mainstream public opinion that it claims to represent.

Abolishment of the standard of unreasonableness would lead to a further concentration of power in the hands of the executive – a power that is already greater in Israel than in many other democracies.

Data indicates that less than a third of the public supports barring the Supreme Court from intervening in decisions by politicians or public officials.

As the government completes its first six months in office respondents were asked to rate its performance in various fields.

Dr. Guy Lurie, IDI expert discusses the court's use of the Standard of (Extreme) Unreasonableness and current status of the judicial overhaul.

The coalition has voted to amend Basic Law: The Judiciary and repeal the Standard of Reasonableness used to review government decisions that are deemed to be extremely unreasonable. On September 12^th, the Supreme Court will hear petitions against the constitutionality of this move.

While nationalism and liberalism appear to contradict, under certain conditions, nationalistic loyalty strengthens the commitment to liberal and democratic values. 

Dr. Jesse Ferris with New York Times' Bret Stephens and Prof. Avi Bell discuss the complexities of the judicial overhaul and its significance on the future of Israel on Sapir Conversations podcast. 

The reform proposal and the resulting protests brought to light and to a large extent also created conflicts on religious and ethnic grounds. The findings of this research reveal a strong relation between levels of religiosity and support or opposition to the judicial overhaul.

Trust in the Supreme Court remains steady, while the share of Israelis who trust the Knesset has almost doubled since last year. Opinions on the likelihood of the government completing its term are fairly evenly divided in the Jewish public.

Dr. Guy Lurie in an in-depth interview with The Jewish Time podcast's Jeff Silberblatt on the attempted judicial overhaul and its implications on Israel's future.

This month we found a slight rise in optimism regarding both the future of democratic rule in Israel and the future of national security. However, almost two-thirds of Arab Israeli respondents replied they are worried that they or family members will be victims of violent crime.

When there are no restraints on what the government can do, the road will be open to “adjustments” (tricks) and “reforms” (schemes and conspiracies) in the electoral process.

Is Israel’s split into pro-and anti-Bibi camps a healthy manifestation of exuberant pluralism—or the symptom of a dangerous and potentially unbridgeable polarization?

The impact of the proposed changes to the judicial system on the financial balance of Israeli households: analysis of the M.O.F risk scenarios by income deciles

The Declaration of Independence expresses a deep commitment to freedom, justice and peace in the spirit of the vision of the Biblical prophets, those semi-tragic figures who rebuked the people and their leaders for their behavior. Or in other words, the gatekeepers.

Three former supreme court justices from Israel, the United States, and Canada—Dorit Beinisch (Israel), Stephen Breyer (US), and Rosalie Abella (Canada)— assembled at the 92^nd Street Y in New York for a timely conversation on the complex legal and political drama unfolding in Israel.

The research examined 42 countries included all the OECD member states along with other leading democratic countries.

Transforming legal advisors into political appointees will thwart the dual purpose of their role- helping the ministry implement its policy, while maintaining the rule of law.

This month saw a decline in optimism regarding both the future of democratic rule in Israel and the future of national security. 21% of Israelis have participated in at least one act of protest against the judicial reforms.

Briefing by IDI President Yohanan Plesner Following the Suspension of the Judicial Overhaul.

The temporary suspension of the judicial overhaul provides an opportunity for the Prime Minister, as well as the leaders of the coalition and the opposition, to turn this crisis into a historic constitutional opportunity.

"“In Ireland we have a judicial appointment commission which is mixed, but there are no politicians on the commission and there never has been.” Alan Shatter, Former Minister for Justice, Equality and Defense (Ireland)

How can Netanyahu — a U.S.-educated and respected world leader who was cautious in his approach to building previous coalitions, and was once respectful of Israeli democratic institutions — support such a dangerous plan? Was the “writing on the wall” earlier on in his lengthy tenure?

Slowing the overhaul is a sham. It’s still a hostile takeover of the Supreme Court and its ability to restrain the coalition

Precisely what legal clause Levin and company will choose to achieve their goals isn’t really important, but the larger implications certainly are.

A top democracy index hasn't yet ranked Israel with Hungary. That will change if the majority becomes all powerful

The concepts of a “position” and “conflict of interest” crop up frequently in the discussion of the judicial revolution - that is why the facts are so important

The Israel Democracy Institute congratulates President Isaac Herzog on his extraordinary efforts. While the President’s plan contains some problematic elements, if it were to be adopted in its entirety as a package, we would support it because it safeguards our democracy and bolsters key elements of our constitutional foundations. 

The current battle in Israel is not between left and right. It is being waged between those who embrace democracy and those who want to make one last use of democracy to institute majority rule. 

The battle against the judicial overhaul is not being waged only to safeguard democracy, it is also a fight to preserve Zionism itself.

Reducing the possibility of invalidating legislation and the rest of the initiatives will further undermine the protection of the rights of the Arab minority in Israel, whose trust in the judicial system has steadily decreased in recent years - but is still high in relation to trust in other institutions.

The death penalty for terrorists bill may pass the Knesset in what may be a dream come true for some and a horrific nightmare for others.

Some actual facts for college and university students whose teachers are under attack for teaching actual facts

A professional opinion by the Israel Democracy Institute presented in advance of the session of the Knesset Committee on the Status of Women and Gender Equality on February 20, 2023

When is the Attorney General empowered to declare that the Prime Minister is incapable of fulfilling his duties? When does temporary incapacity become permanent? What has the Court ruled in the past about a declaration of incapacity concerning Benjamin Netanyahu?

The question of how much power the government should wield was one that generations of halakhic decisors (poskim) worked to curtail.

The Israeli judicial system’s independence and professionalism protect IDF commanders from prosecution in international courts. A close look at the planned judicial overhaul leads to the conclusion that if implemented it would increase the risk to Israeli citizens and make it harder for the country to protect them in the future.

The proposed bill contravenes the basic values of the State of Israel, flouts international treaties Israel has signed and will limit its moral superiority over terrorists. The bill will expose Israel to harsh international condemnation, and it will hamper, rather than alleviate efforts in the war against terror.

In recent years, there have been attempts to enact the “override clause” in Israel, a legal provision that would enable the Knesset to override the Supreme Court’s rulings in cases in which it strikes down legislation. This week the Constitution, Law and Justice Committee is discussing a draft of such a law.

The proposed legislation evicerates the only check on executive and legislative power in Israel.

Downgrading the independence of government legal advisers is not among the highest-profile proposals to reform the Israeli legal system being advanced by Israel’s new right-wing government, but weakening the status of government legal advisers is actually an important and troubling part of the government’s package of proposed reforms.

66% of Israelis: Supreme Court should have power to strike down laws that are incompatible with Israel’s Basic Laws | On Judicial Selection Committee: 63% Support Current Principle Requiring Agreement between Politicians and Justices.

Rabbinical courts, where appointments are based on political loyalty, offer a cautionary model of a judicial nightmare

Increased corruption and damage to Israel's economy - four simple figures with important lessons for Israel’s judicial overhaul

Coercive regulations and enforcement, especially in democratic countries, have a more limited reach than governments are prepared to admit.

Since 1953, judicial appointments in Israel have been made through a Judicial Selection Committee in which legal professionals—judges and lawyers—are in the majority and politicians in the minority. The new Israeli government’s plans for legal reform turn this system on its head and allow the coalition to fully control appointments to all parts of the judiciary, thus consolidating its dominant position in all three branches of government. 

The second article in this series describes in depth how the Supreme Court used its authority, why it encountered a backlash, and what current proposals to limit the power of the Court to exercise judicial review over Knesset legislation look like.

Political discontent with the power relationship between the judiciary and the political branches has been percolating since the 1990s, often in connection with criminal proceedings against senior politicians. Prof. Amichai Cohen and Dr. Yuval Shany provide context for the ongoing debate concerning recent legal developments in Israel, so that outside observers can follow them more closely.

5 other ideas for upgrading Israel's judicial system – without destroying democracy, doing away with the mechanisms for oversight of the government or harming our basic rights.

The recently published opinion by the Attorney General, Adv. Gali Baharav-Miara, makes clear that the proposal "reform" makes no attempt to enhance the balance among the branches of government: It is quite simply a demand for unlimited government power.

Turning ministry legal advisors into political appointees will deprive them of their ability to protect the rule of law and will reduce public trust in the ministries.

Debilitating the judicial system would deal a blow to overseas investors’ motivation to invest in Israel and lead to a sharp drop in its credit rating. We need only look at the precedents of Turkey, Hungary, and Poland, to understand just how serious the threat is.

The appointment of conservative judges to the court, and even the enactment of a certain version of the override clause, will not bring about the destruction of the Supreme Court, and will certainly not turn Israel into a totalitarian state. However, the continued attacks on the Court, and the potential passage of the most extreme proposals pose a serious challenge to Israeli democracy.

The debate surrounding the Override Clause should really focus on the disproportionate power of the Knesset and not on the power of the Supreme Court. All other democracies have structural mechanisms that limit the concentration of power in the hands of one institutions - we must create such a mechanism in Israel as well.

Why is the Supreme Court's independence so important to Israeli democracy and what are the proposed reforms attempting to achieve? Listen to a short explanation by Prof. Amichai Cohen, senior fellow at IDI.

There’s a need for judicial reform, but the Supreme Court plays a crucial role in safeguarding democracy.

Eric Fingerhut, CEO and President of the JFNA with Yohanan Plesner, President of IDI and Prof. Suzie Navot, VP of IDI discuss the new government's legislation proposals and the future of Israeli democracy. January 2023.

The Ministerial Committee on Legislation is a powerful force behind legislation in Israel – therefore it isn’t surprising that Ben-Gvir is vying for the position of Vice-Chairman.

The bill to amend the Police Ordinance has been compared to practices in other countries - however it ignores the fact that other countries have in place procedures that guarantee the operational independence of the police when it implements the policies laid down to guide its actions

The blow would be hardest for organizations whose role is to defend vulnerable groups, including; those living below the poverty line, the elderly, women, and people with disabilities.

If Netanyahu's new government implements its plans, human rights may soon depend on majorities. Israel's delicate political structure makes this possible.

Prof. Amichai Cohen, Senior Fellow at IDI, the Center for Security and Democracy, provides an in-depth historical overview of Israel's constitutional crisis and the background to the currently proposed judicial review reforms, particularly, the "override clause".

Moving units from one ministry to the next, to satisfy political needs, has a negative impact on the Ministries' ability to provide the necessary service at a high level.

Despite controversy, changes to the Judicial Selection Committee, must be made with broad consensus - and not by slimmest of majorities.

President Reuven (Ruvi) Rivlin speaking at the Fix It Don't Destroy It Judicial Reform Conference at the Israel Democracy Institute, December 2022.

Prof. Alan Dershowitz in conversation with Dr. Jesse Ferris at IDI’s Judicial Reform Conference 2022.

The Israel Democracy Institute’s special conference today (December 12th) focused on the implications of the proposed judicial reforms that have been proposed by members of the incoming coalition. 

Why it is a bad idea to allow the coalition the deciding voice in the appointment of Supreme Court justices? Is it true that in Israel, judges appoint themselves? The complete guide to the impending constitutional reform.

Israel still has no constitution, and the separation of powers seems fragile. What challenges will Israel’s democracy face in the next government?

Why is the override clause at the heart of the forthcoming coalition's agenda and how does this relate to civil rights in Israel? Prof. Suzie Navot, Vice President of the Israel Democracy Institute explains the role of the Supreme Court in Israel's democratic system in just over two minutes.

The majority of Israelis think that the Supreme Court should retain its ability to strike down legislation that contravenes the country’s Basic Laws – and only 16% said that the Judicial Selection Committee that appoints justices should be politicized by increasing the number of elected officials serving on it.

The optimistic hope that the majority will not take advantage of its power to perpetuate its rule is akin to leaving the cream to be guarded by 61 cats. The temptation is just too strong.

The new coalition's shortage of women and its proposed High Court override clause are a danger to the struggle for gender equality in Israel.

In this edited transcript of her conversation with BICOM Director Richard Pater, Vice-President of Research at the Israel Democracy Institute Professor Suzie Navot argues that judicial reforms proposed by the right-wing bloc – to Knesset override of the Supreme Court, executive immunity, and the appointment of judges – threaten Israeli democracy and the already fragile separation of powers.

Prof. Suzie Navot sits down with Richard Pater of Bicom, to discuss judicial reform. Prof. Navot explains the background of Israel’s legal system, its uniqueness among other parliamentary democracies and the significance of potentially implementing an override clause.

Turning court rulings into a “recommendation” that the Knesset could override, is likely to exacerbate tensions that already exists between the Supreme Court and the Knesset.

The proposal to abolish the Judicial Selections Committee would lead to politicization of the judiciary, undermine judges’ independence, and shift the careful balance reached through it between the branches of government.

In Israel, judges sit on the bench until they reach the age of 70, while advocates for changing the current method of their appointment often support the idea of limiting Supreme Court judges’ tenure.

With calls to enact an 'override clause' to push back against judicial review back in the news, Dr. Amir Fuchs analyzed the twenty laws the Court has overturned since Israel's establishment

"This election will be less about which candidate ends up as prime minister, but rather the real possibility of radical judicial reforms that might soon pass in the Knesset and which would limit the Supreme Court’s ability to perform crucial oversight over the political system."

It turns out that voters actually want robust judicial oversight - which explains why the Override Clause and placing limitations on judicial review have not been prominant in the election campaign

The Israel Democracy Institute offers a look inside efforts to reduce politicization of Israel's Supreme Court.

Granting the government additional power, which will enable overriding Basic Laws in simple legislation must not be allowed, lest the defense of basic civil rights in Israel are compromised

The Override Clause would not alter the balance between the branches of government – it would shift the balance of power between the government and the governed

The Israel Democracy Institute calls on Parties to Demand Strengthening of 'Rule of Law' and 'Separation of Power's in Coalition Agreements.

Laws define the legal rules of our democracy and ensure the stability of the political system while guaranteeing individual rights and general public interest - enactment of the Override Clause would seriously undermine this balance.

How are judges appointed in Israel? Who sits on the committee? And why is it so important to maintain the balance between judicial independence and democratic accountability in the appointing process? Tune in to learn more with Dr. Guy Lurie

Attorney Yoav Laloum relates how by petitioning the High Court of Justice he was able to stop ethnic separation in ultra-Orthodox educational institutions

Alice Miller describes how the High Court of Justice helped change women’s military service and improve gender equality in the IDF

The good news is that despite the unprecedented offensive which aims at dealing a significant blow to the Supreme Court, the majority of the Israelis still have trust in this institution. In fact, the levels of trust in the court are much greater than those of the Knesset and the Government

A special survey conducted by the Guttman Center for Public Opinion and Policy Research at the
Israel Democracy Institute finds: The majority of the Israeli public fears that implementation of the Override Clause by the Knesset will give unlimited power to politicians and lead to an increase in political corruption

The Prime Minister is currently fighting to remove the Supreme Court's power to strike down Knesset legislation, thereby turning the last protector of human rights in Israel into merely an advisory board. He is even threatening elections over the issue. 

Dr. Amir Fuchs argues that an override of Supreme Court decisions should be stoutly resisted by democrats from all parts of the political spectrum.

Dr. Amir Fuchs discusses the proposal to add an override clause to Israel's Basic Law: Human Dignity and Freedom that would enable the Knesset to bypass the High Court and deal a a severe blow to the main safeguard of human rights and minorities in Israel.

IDI Vice President Prof. Mordechai Kremnitzer and Adv. Amir Fuchs analyze the proposed legislation that would allow the Knesset to reinstate laws that have been struck down by the Israeli High Court and warn of a threat to judicial review and civil liberties.

The Knesset voted for its representatives on the judicial selection committee. This is the first time it was not able to elect two representatives, leading to a second round of votes in the next 30 days. 

Democracies ensrhine onstitutional rights, and give the court the power to protect them, out of concern that the legislator may act rashly, or even tyrannically - so then why should we "override" the court's authority - when we have no other constraints

Batya Katar describes how she was able to make the state allocate the necessary budget to shield classrooms against rockets through the intervention of the High Court of Justice