by David Rosenberg
How Israel became embroiled in its most divisive public debate in years, what the reforms would do, and why some oppose them.
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| Yariv Levin (right) and Simcha Rothman (left) Yonatan Sindel/Flash90 |
Overnight, the Knesset voted to move forward with the Override Clause, passing the bill with a 61 to 52 majority in its first reading.
The clause, perhaps the most contentious part of the Israeli government’s controversial judicial overhaul plan, would empower the Knesset, with a 61-vote majority, to veto Supreme Court rulings striking down Knesset laws.
It would also effectively enshrine the Supreme Court’s right to judicial review in Israeli law for the first time ever – a fact which is too often ignored by the reform’s opponents.
Constitutional Law in Israel
When Israel declared its independence in May 1948, the Declaration called for the convention of a constituent assembly to draft a constitution, to be completed no later than October 1st of that year.
As so often happens, however, reality intervened, in the form of a massive Arab invasion, delaying not only the drafting of the constitution, but the election of the constituent assembly.
Elections were not held until late January 1949, resulting in the formation of the constituent assembly, later dubbed the First Knesset.
Having already missed the original October 1948 deadline, the Knesset struggled to reach an agreement on the passage of a constitution, with religious and secular lawmakers sparing over issues of religion and state, and then-Prime Minister David Ben Gurion opposing ratification of any document he felt would distract from the very immediate, concrete issues facing the young state.
By 1950, it had become apparent that no deal could be reached in the term of the first Knesset for a comprehensive constitution, leading to the Harari Resolution.
Drafted by Yizhar Harari and passed by the Knesset, the resolution tasked the Knesset’s Constitution, Law and Justice Committee with crafting a constitution, instructing it to do so piecemeal, with individual Basic Laws, which one day would be ratified together as the constitution of Israel.
The First Knesset instructs the Constitution, Law and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State.
In the decades since the resolution’s passage, the Knesset has passed 13 separate Basic Laws, amending the laws numerous times, the latest amendment made in the run-up to the formation of the new government last December.
The Constitutional Revolution
For the next 45 years, the Israeli judiciary did not interpret the individual Basic Laws as a de facto constitution, and assumed only a very limited substantive judicial review, defined in two landmark cases in 1969 and 1974.
In the former, the Supreme Court struck down a regulation limiting the state funding of political parties’ election campaigns. In its decision in the case of Aharon A. Bergman v. The Minister of Finance, the court ruled that since the Basic Law: The Knesset’s fourth section required an absolute majority of 61 MKs to amend (rather than a simple majority of MKs voting), that portion of the Basic Law is entrenched in constitutional law.
In a follow-up ruling on the 1974 Negev case, the court clarified that it does not have the right of judicial review based on other, non-entrenched Basic Laws.
That changed, however, with Israel’s constitutional revolution in the 1990s, when the Supreme Court assumed sweeping powers of judicial review, alongside a massively expanded use of the reasonableness standard to strike down administrative decisions and appointments.
Aharon Barak, then an associate justice on the Supreme Court, claimed that the passage in 1992 of two new Basic Laws – Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty – established broad powers of judicial review for the high court.
While neither piece of legislation was passed with a 61-seat majority, the former included a clause which could only be amended with a 61-seat majority.
The Basic Law: Human Dignity and Liberty featured no voting threshold for modification, but included a clause limiting the passage of laws violation the new Basic Law to “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
In 1995, the court took its first concrete step in affirming its own right to comprehensive judicial review with the Bank Mizrahi v. Migdal Cooperative Village, ruling that an individual Knesset can bind future Knessets, limiting the sovereignty of any Knesset as the constituent assembly of Israel.
Beginning in 1997, the Supreme Court took advantage of its newly declared right to judicial review, striking down 20 laws passed by the Knesset.
Used only twice in the 1990s, judicial review was used more frequently in later years, with the court striking down four laws in the 2000s and 12 in the 2010s. The court also struck down two laws in 2020.
The Push for Judicial Reform
The rapid expansion of judicial activism over the past two decades sparked a backlash, particularly on the Right, against not only the court’s use of judicial review, but a whole host of long-standing issues, including the composition of the court, and the role justices play in appointing their own successors.
Israeli judges are appointed by a nine-member committee, which includes two ministers, two Knesset members (traditionally one of which comes from the Coalition and the other from the Opposition), two members of the Israel Bar Association, and three Supreme Court justices.
That has given the five non-elected officials on the committee a de facto veto over court appointments, though a 2008 reform expanded the government’s influence somewhat, requiring a seven-vote super majority to confirm nominees.
Over the past two decades, faith in the Supreme Court has declined significantly, with a majority of Israelis believing the court’s justices are heavily influenced by their own political views.
A 2019 Israel Democracy Institute poll found that 59% of respondents, including both Arabs and Jews, say the justices’ professional decisions are heavily influenced or significantly influenced by their personal political views, compared to just 32% who say their rulings are either not influenced by their views at all, or are only somewhat influenced.
Nor has the decline in trust been confined to the high court.
A 2021 poll by the University of Haifa found significant declines in trust across the board for Israel’s judiciary.
Israelis gave the judiciary an average score of 3.25 on a 1-to-5 scale in 2016, but that figure fell to 2.67 by 2020. Trust in the Supreme Court fell from 3.18 in 2016 to 2.74; the average level of trust in the Attorney General fell from 3.05 to 2.53; and trust in the state prosecutor fell from an average of 3.11 to 2.5.
While the issue of judicial reform has long been considered, the push for a comprehensive overhaul has gained momentum following a series of major decisions by the Supreme Court which angered major constituencies on the Right.
The court has in particular drawn the ire of haredi voters, in part due to its striking down of two separate laws, in 2012 and 2017, which protected draft deferments for yeshiva students.
A litany of rulings upholding demolition orders for Israeli communities in Judea and Samaria have had a similar impact on support for judicial reform among the Religious Zionist public, as did decisions striking down a law in 2002 normalizing Arutz Sheva’s radio broadcasts, and the 2020 ruling striking down a law to legalize unregulated Israeli towns in Judea and Samaria.
Rulings on social issues, including expanding recognition of the Reform and Conservative movements in Israel - in particular with regard to conversions performed by the two groups – have only strengthened support among haredi and Religious Zionist lawmakers for judicial reform.
Not surprisingly, support for the Supreme Court’s judicial activism is strongly negatively correlated with religious observance.
According to the Israel Democracy Institute’s December 2022 Voice Index, just 15% of haredi respondents believe the Supreme Court should have the power of judicial review, compared to 27.5% of Religious Zionists, and 35% of traditional-religious Jews.
Among traditional Jews who do not classify themselves as religious, 56% support judicial review, as do 76% of secular Jews.
A new poll released by Radio Kol Hai Tuesday morning found even higher levels of support for the government’s judicial reform plan, with 90% of respondents backing the overhaul, and 86% saying they oppose any attempt to reach a compromise arrangement with the Opposition.
What the Judicial Reform Plan Would Do
The government’s judicial overhaul plan has evolved somewhat since it was first announced by Justice Minister Yariv Levin (Likud) in January, with modifications to the two bills submitted by Levin, and a parallel bill drafted by Constitution, Law and Justice Committee chairman Simcha Rothman (Religious Zionist Party).
The basic outline of the plan has remained largely intact, despite the softening of certain clauses, with five basic areas to be addressed:
1. Increasing the government’s influence on the judicial selection committee by dramatically increasing the number of members appointed by the government.
2. Raising the threshold for the court to overturn Knesset laws, and barring the court entirely from striking down Basic Laws or their amendments. The entire court would be required to weigh in on a law in order for it to be struck down, and a supermajority of justices would be required to agree to the ruling in order to overturn the law. The exact size of that supermajority has been modified since the bill’s original drafting, being reduced from 100% to 80%, with discussions for a further reduction.
3. Offering an ‘Override Clause’ to allow the Knesset to overrule Supreme Court rulings that strike down Knesset laws.
4. Granting government ministries independence from the Justice Ministry, giving each ministry power to hire and fire its own legal advisers, whose opinions would no longer be legally binding.
5. Ending or significantly limiting the use of the reasonableness standard by courts to strike down administrative decisions and appointments. While Levin’s version of the reform plan would bar use of the standard to overturn any decisions, Rothman’s bill permits court’s to strike down decisions by unelected bureaucrats, but not those of elected government officials.
Arguments For and Against
Perhaps the most controversial element of the plan, the Override Clause would both limit the Supreme Court’s right to judicial review, while at the same time enshrining it in Israel’s legal code.
In conjunction with the clause defining the conditions under which the court may overturn Knesset laws, the Override Clause marks the first recognition by the Knesset of the court’s right to strike down laws – itself a tacit acceptance of the constitutional status of the country’s Basic Laws.
That has led some jurists critical of court’s use of judicial review, including Yoram Sheftel, to oppose the Override Clause as a de facto concession to the judicial activist camp.
The more common criticism of the clause, however, is that it would effectively end judicial review altogether, allowing any government with a function majority to overrule the court at will. Some opponents of the government’s plan argue that a higher threshold should be set for overturning Supreme Court rulings.
Still others argue that given the other reforms planned, including the limits on the Supreme Court striking down laws in the first place, the Override Clause is entirely unnecessary.
Supporters say the clause clearly addresses the two key points cited by Aharon Barak in justifying the use of the Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty to claim a right to judicial review – clauses requiring a 61-vote majority in the Knesset to amend, and requiring deliberate action by the Knesset “for a proper purpose”.
A vote by an absolute majority in the Knesset to reaffirm a bill struck down by the court would uphold both principles, advocates say, restoring the balance of powers between the judiciary, legislature, and executive.
Proponents of the government’s plan also argue that increasing the government’s role in selecting new judges would strengthen, rather than weaken, Israeli democracy, moving Israel closer to the American system, whereby federal judges are nominated by the executive branch and confirmed by the upper house of the legislature, the Senate.
Such a change would also increase the ideological diversity of a judiciary that has for decades selected its own replacements.
Opponents warn the move could politicize the court and give excessive power to political leaders, including those facing indictment or on trial, such as Prime Minister Benjamin Netanyahu, whose governments could potentially select their own judges.
David Rosenberg
Source: https://www.israelnationalnews.com/news/368700
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