Israel’s Proposed Judicial Overhaul – What Are The Basic Points & Why Is It Controversial?

February 16, 2023

In recent weeks, massive protests have spread across Israel, with hundreds of thousands of Israelis rallying in opposition to a plan by the newly re-elected Netanyahu government to overhaul the country’s judiciary. Led by Justice Minister Yariv Levin, the government aims to pass the legislation by the end of March.

Fearing that there will be an erosion of Israel’s democracy and the rule of law, some Israeli leaders like President Isaac Herzog has warned that Israel is on the brink of social and constitutional collapse, while National Unity party leader Benny Gantz fears that Israel is heading to a path towards a “civil war”.

The Netanyahu government, meanwhile, has defended the changes by stating that they will put ultimate power over Israel in the hands of elected officials, not judges. Critics, meanwhile, say that an independent judiciary is critical to a functioning democratic state to help provide a check to the powers of elected officials.

These proposed legal changes by the Netanyahu government, and the ensuing protests, have been widely reported by news outlets in Canada and throughout the world.

In this primer, we unpack the basic components of the Israeli government’s proposed changes and answer why supporters say the changes are necessary and why critics are opposed.

Background:

During the 2022 election campaign in Israel, Benjamin Netanyahu, like previous Israeli governments and prime ministers, promised that judicial reform would be instituted should he be re-elected as prime minister. Following the election, his new coalition government began planning for a significant overhaul of the country’s judicial system.

Among the proposed changes are the following:

1. Overriding The Supreme Court – This proposal would allow a simple majority (at least 61 of 120) of Knesset members (Israeli members of parliament) to override any Supreme Court decision.

2. Selection Of Judges – Currently, judges in Israel are selected by a committee comprised of elected officials in the Knesset, as well as judges currently serving, and members of the Israel Bar Association. Under the proposed changes, members of the government would represent a majority of the members on selection committees for judges.

3. Judicial Review – The proposed changes would limit the ability of the Israeli Supreme Court to limit or strike down laws passed in the Knesset, in part by requiring that an 80% majority of Supreme Court Justices must be in support.

4. Power Of Legal Advisors – The proposed legislation would limit the ability of legal advisors inside government ministries to make binding decisions, rather redefining them as experts offering non-binding advice to the government.

5. Concept Of “Reasonableness” – Currently, the Israeli Supreme Court can strike down legislation, based on a test of “reasonableness,” whereby it determines if governmental decisions are proper based on whether they are considered to be “reasonable.”

Advocates for the proposed changes argue that they are not without precedent elsewhere in the world, or at least a roughly equivalent model. For example, Supreme Court Justices in the United States are chosen by elected officials, and many judges are directly elected.

Even more directly, Canada’s notwithstanding clause has been cited as a model by supporters of the judicial overhaul, though there are key differences. The notwithstanding clause allows Parliament to override certain sections of the Charter of Rights and Freedoms, though only in limited circumstances, has a five-year sunset clause, and it’s never been used before by the federal government.

Irwin Cotler, Canada’s former Attorney General and Justice Minister, has criticized the comparison, saying that the notwithstanding clause is subject to significant oversight, ensuring it is not abused.

Advocates for the changes say that a significant overhaul is needed to reign in a judiciary that has sometimes been too activist in their minds, and will make judges subservient to the will of the people, as it should be in a democratic state.

According to Netanyahu: “The main problem is that the functioning of a proper democracy requires a balance between the three branches of government, legislative, executive, and judicial,” but in Israel, “that balance has been taken off the rails. What we’re trying to do is put it back in. We probably have the most activist judicial court on the planet…”

Critics of the proposal say that the moves will harm Israel’s democratic character by risking a “tyranny of the majority,” and could potentially scare foreign investors from the country. Netanyahu has stated that the existing judicial landscape has caused undue red tape and bureaucracy, and eliminating roadblocks will help the public have more say in their future.

Criticism of the proposed changes have come not just from inside Israel, but also from Jewish communities in the Diaspora, as well as from legal scholars including a group of Canadian jurists, who on February 9, published a letter saying the overhaul will “weaken democratic governance, undermine the rule of law…and diminish the international respect currently accorded to Israeli legal institutions.”

As the Netanyahu government forges ahead with its proposed plan, and critics continue to protest the move, anti-Israel activists, such as Ahmad Tibi, an Arab member of Israel’s Knesset, have used the opportunity to describe Israel as a racist country, in an interview with Al Jazeera.

But regardless of the outcome of the proposed changes, Israel is once again demonstrating that it is a vibrant democracy where discussions over the place of the judiciary in Israeli society can take place. Protesters in public squares are free to express their opposition to the government in Israel, but for so many citizens of countries like Iran and Saudi Arabia, such freedom of expression simply does not exist.

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