Judicial Reform 101: What You Need To Know About The Mess In Israel

Tens of thousands of Israelis have been taking to the streets to protest against the new government’s plan to impose radical changes to the Jewish state’s judiciary.

They are some of the biggest demonstrations Israel has seen in years, with participants from across the political spectrum. Protestors believe that the judicial reform will undermine Israel as a democratic state by upsetting its system of checks and balances, granting almost all power to the executive branch, and leaving human and minority rights unprotected.

For years, politicians and people from both sides of the political spectrum have been arguing that changes need to be made because Israel’s High Court of Justice is too powerful. However, critics claim the proposed reforms are too extreme, taking away all of the power of the Supreme Court instead of limiting it in more beneficial ways.

So what do these judicial reforms entail?

To summarize, the biggest concerns about these judicial overhaul plans are how they will dramatically weaken the High Court of Justice and secure political control over judicial appointments.

Here are the main five components of the judicial reforms:

1. Override clause

The Israeli Parliament (Knesset) would be able to override Supreme Court decisions with a simple majority of 61 votes out of the 120-seat Knesset.

2. Appointing judges

The reforms would change how Supreme Court justices are selected, essentially giving the ruling government coalition control of appointing them.

Today, judges are chosen by a committee of nine members: Three Supreme court judges – including the High Court president – two representatives of the Israel Bar Association, and four members who are elected representatives (two ministers and two Knesset members).

If these reforms are passed, the two representatives from the Israel Bar Association would be replaced by two public representatives who are chosen by the justice minister. This would give the sitting government a majority of the votes for selecting judges.

In other words, the ruling government would have five out of nine seats in the committee when it comes to appointing new Supreme Court justices.

But keep in mind, this is a reform that has been pushed for quite some time, because there are many who believe the Israel Bar Association has no place on the committee, and that those selecting Supreme Court justices should be more reflective of the public.

3. Earlier retirement age for justices

Today, the Israeli Supreme Court has 15 judges. Once appointed, judges serve until retirement at the age of 70, unless they are removed or choose to resign from office. The judicial reforms would lower the age of retirement for Supreme Court justices to 67.

If enacted, the move would require four out of the 15 currently serving judges to step aside. This would mean that the new government would be able to fill those places with its own selections according to the rules of the new judicial reform.

It should be noted that there has been a push in the past to do this because many argue there needs to be new blood and more of a variety of Israeli society in the High Court.

4. Test of Reasonability

The Supreme Court would no longer be able to judge Knesset legislation, appointments, or other government decisions on the grounds of “reasonability.”

What does that mean? Here are two examples.

Last month, the Supreme Court decided to rule that Israeli Prime Minister Benjamin Netanyahu’s appointment of Aryeh Deri, head of the Shas party, as a minister was “highly unreasonable” due to his past criminal convictions. If the Supreme Court hadn’t done that, Deri – who was convicted of fraud and corruption – would currently be serving as a minister in the Israeli government.

In 2007, when the Supreme Court ruled that the government’s decision not to reinforce classrooms in Sderot against missile attacks was “unreasonable.” Sderot is a southern Israeli town that borders the Gaza Strip, and local residents only have about 15 seconds to reach bomb shelters, which is why the Supreme Court said it would be unreasonable to expect entire classrooms to be able to run to a bomb shelter in time during an attack. The court ordered then-prime minister Ehud Olmert to immediately reinforce the schools.

5. Legal Advisers

The plan also includes changing the law so that government ministers will be able to appoint their own legal advisers, which is not in their authority currently. Today, ministers get counsel from advisers operating under the Justice Ministry – aka the judiciary.

These reforms would mean that government legal advisers would also lose the ability to make binding decisions, and would only be able to issue advice. Each ministry has a legal adviser who says what is legal or not according to the law – and the current government argues that the legal advisers who are appointed by the judiciary are biased.

What do protesters against these judicial reforms believe?

Opponents argue that the reform will give the ruling government coalition too much power to do whatever they want.

They believe that the reforms will upset Israel’s system of checks and balances as a result, and grant too much power to the executive branch. They are concerned that the reform will allow the government – which is Israel’s most right-wing and religious to date – to begin overturning existing laws that protect the rights of minority groups, women, and individuals.

Plus, they say this judicial reform is all about Netanyahu, who is on a mission to evade conviction in his ongoing corruption trials, and wants to do so by using his own government to override Supreme Court rulings that may go against his desires.

What do supporters of these judicial reforms believe?

Supporters believe the Supreme Court has too much power, and that the plan will strengthen democracy by correcting the balance between the branches. They point to the United States as an example, where Supreme Court justices are chosen by politicians, the president, and senators.

They say Israel has no written constitution, which calls into question the moral basis for Supreme Court rulings that override the Knesset’s decisions, by claiming they are “unconstitutional.”

So is the judicial reform going to pass?

The first piece of legislation in the judicial reform is headed for its first reading in the Knesset plenum.

There are three readings in the parliament before a law or reform is passed. This means that the first of the judicial reform’s provisions could be voted on in its first reading either this Wednesday or next Monday.

The assumption is that it will take at least a week, which will leave both the current government and opposition until then to negotiate.

Both sides happy?

Israeli President Isaac Herzog is calling for compromise, and has introduced a five-point plan as a general basis for an agreement:

1. A law would be passed to clearly lay out the status of all legislation. Today, basic laws are passed by the Israeli parliament with a simple majority of 61 out of 120 seats. Herzog wants to make it harder for the Supreme Court to strike down basic laws that have been passed, and also make it more difficult for the Knesset to pass laws in the first place. That way, there would be a fairer balance between the Knesset and the court when it comes to passing laws. There would also be four Knesset readings to pass a law, rather than the usual three.

2. Herzog wants to ease the judicial burden on judges. The judge-to-citizen ratio in Israel is very low compared to other OECD countries, and there must be more done to help ease the amount of work that judges have.

3. There will be greater efficiency brought to the judicial system to help increase public confidence in the courts, which many say work very slowly and are constantly delayed as a result of how much work they have to do.

4. The judicial selection committee would be reconfigured so that no side has an automatic majority. This means all branches of government would have equal representation on the panel.

5. Only in cases of extreme unreasonableness will the Supreme Court have the right to strike down a law. – I24 News