The Planned Judicial Overhaul

Israel's Minister of Justice introduced a legislative package aimed at overhauling the judicial system.

The explicit intent of the reformers is to weaken the judiciary’s capacity to oversee the executive and legislative branches, while concentrating power in the hands of the coalition, which in the Israeli system controls the legislature. Supporters of the changes justify them as necessary to rein in an unaccountable judiciary, while opponents of the changes fear that the removal of the only effective check on executive power in Israel will jeopardize civil liberties, economic prosperity, and Israel’s international standing.

The Standard of (Extreme) Unreasonableness

The standard of unreasonableness has roots in English law and is commonly used in many other countries. It is utilized in areas where a level of vagueness exists within legislation and allows the court to oversee government decisions where the government’s decision “disproportionately focuses on political interests without sufficient consideration for public trust and its protection.”

This is only used in cases that are deemed extremely unreasonable and may be seen as damaging to the democratic foundations of the country.

Highlighted Articles:

The Reasonableness Issue Requires Serious, Informed, and Consensual Discussion

Only a government that wishes to make extremist and corrupt decisions would be afraid of the reasonableness test.

Unreasonableness and the Judicial Overhaul - Survey Analysis

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

The Supreme Court Hearing on Reasonableness: Law without Enforcement

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.

The Standard of Extreme Unreasonableness - Explainer

The coalition is currently seeking to advance a legislative amendment that will prevent the Supreme Court from annulling (or striking down) decisions of the government, individual ministers, and other elected officials (such as mayors) it finds to be "extremely unreasonable."

The proposed 'Override Clause' would grant the Knesset the authority to override judicial decision with a simple majority of 61 Members of Knesset. In Israel, any coalition government has by default 61 members. Therefore, any government would have the ability to override judicial decisions, affectively eliminating judicial review of legislation by the Court. Since in Israel’s parliamentary system the executive branch controls the legislative branch, the elimination of judicial review would remove the most significant checks and balances on the government. 

Highlighted Articles

The Override Clause Explainer

How Often Does the Supreme Court Invalidate Legislation?

The Override Clause—Canada and Israel

Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government

Judicial Selection Committee

In Israel, the judge selection committee is composed of elected politicians, justices, and Bar Association members. Selection of a Supreme Court justice requires a majority of 7 of the nine members, which means neither politicians nor justices can unilaterally control of the selection process.

The proposed overhaul would provide the coalition government in power almost complete control over the selection of judges, politicizing all ranks of Israel's judicial system.

Highlighted Articles:

Appointment of Judges to High Courts in Democratic Countries: A Comparative Study

The Destruction of the Rule of Law

Changing the System for Judicial Appointments—Only with a Broad Consensus

How Israeli Judges Are Appointed: Questions & Answers

The Transformation of Legal Advisors into Political Appointees

Ministerial legal advisors have a dual role: they help the ministry implement its policies while serving as gatekeepers that ensure the ministry complies with the law.

Today, they are civil servants appointed by tender and report to the Attorney General. Under the proposed overhaul, the legal advisors will become political appointees, subordinated to the ministers and potentially transformed into yes-men, diminishing their ability to perform their duty and defend the law. 


Highlighted Articles:

The Role of Legal Advisors - Explainer

The Attack on Legal Oversight Threatens Us All

Making Ministry Legal Advisors Political Appointees Goes Against Jewish Law

The Coalition Agreements of Israel's 37th Government: The Appointment of Legal Advisors in Government Ministries