Israeli legal reform – debated

What is the most appropriate method for electing Supreme Court justices?
This question dominates public debate in Israel today.

Israel’s Minister of Justice Yariv Levin advocates a change in Israel’s legal system.
Photo: Reuven Kapuchinski

Israeli Prime Minister Benjamin Netanyahu agreed at the end of March to postpone the decision on the legal reform that has caused hundreds of thousands of Israelis to demonstrate against the government’s plans. At the same time, Netanyahu emphasized that the need for reform remains in place and that legislative work will resume in a month or so.

The appointment of members to Israel’s Supreme Court is very different to other democratic countries. A study by the Israeli conservative think-tank “Kohelet Policy Forum” released late last year, fueled the debate. The study examined how members of the Supreme and Constitutional Courts in a range of democracies around the world are elected.

Out of 37 OECD countries, 31 countries give the political majority an influence over the election of Supreme Court members, the study showed. In only six countries -including Israel -the legislative body itself chooses its members. In the other five countries, the court has no jurisdiction to overturn legislation, which it can in Israel.

In the United States, for example, the judges of the Supreme Court are chosen by the President of the United States with the approval of the Senate. In France, members of the Constitutional Council are elected by the president and both houses of parliament. In Germany, judges in the Constitutional Court are appointed by both chambers of the legislature. In Australia the Attorney General selects the members of the Supreme Court and in Japan they are chosen by the Japanese government with the approval of a referendum.

An examination of the top 30 countries in the 2018 Democracy Index yields similar results: In 25 of the countries, elected politicians are the ones who select all or most of the members of the Supreme Court. In Canada, Australia, New Zealand, Belgium, Switzerland, Austria, Ireland, the Netherlands, Denmark, Sweden, Iceland, Finland, Norway and more countries, judges to the Supreme Court are elected by a political majority.

The current Israeli government’s proposal to reform its legal system has created debate in Israel. Among other things, the bills deal with limiting the Supreme Court’s authority to overturn laws enacted by the Knesset. The government also wants to increase its powers over the appointment of judges and limit the authority of legal advisers.

Today, the Supreme Court can stop legislation passed by the Knesset claiming it to be unconstitutional. The reform will also include altering the configuration of the committee which selects judges so that a majority of its members are appointed by the government.
Further steps announced are to change the appointment process for legal advisers to government departments, so that they are appointed and dismissed by respective ministers. In addition, the advice of the legal advisers shall not be binding on the heads of departments. Today, these advisors are under the supervision of the Department of Justice.

Prime Minister Benjamin Netanyahu defends the reform but has been prevented from participating in the decision-making process by the Attorney General, due to the ongoing trial against him.

One of the incoming government’s official election promises was to reform the judiciary because it believed that the Supreme Court had lapsed into political activism in favor of the left’s agenda. The proposed reform has drawn strong reactions from the opposition in Israel, which accuses the government of undermining the balance of power.

Israel’s president, Isaac Herzog, former party leader of the Labor Party who lost the prime ministerial race to Netanyahu in 2015, has called for the reforms to be halted to allow for a political consensus. The government instead presented a bill for a first reading on February 13, 2023.

The proposed changes would allow the Knesset to be able to override a Supreme Court ruling that rejects legislation by allowing the Knesset to vote down the court’s decision. Israel’s enemies rejoice in the political strife in Israel. Hezbollah leader Hassan Nasrallah said in early March that recent events in Israel are an indication that the country is nearing its end – citing the internal strife. Nasrallah also warned that a proposed Israeli law to introduce the death penalty for terrorists convicted of deadly attacks will only encourage further abuses. “Everything that’s happening in Israel is one of the signs of the end of this entity,” said Nasrallah, whose own country (Lebanon) is in the midst of a year-long devastating economic and leadership crisis, writes the Times of Israel.