Israel’s Judicial Reform Bill: A Threat To Judicial Independence & Democracy?

The first Bill intends to strip away the Supreme Court's ability to proclaim Israel's Basic Laws invalid as they "serve as the nation's constitution." This authority to assess the legitimacy or "reasonability" of legislation is comparable to the judicial review authority granted to Indian courts. The other Bill modifies the make-up of a collegium-like "nine-member committee which selects judges," allowing the government to nominate the justices. The purpose of this is to give elected officials and government appointees an "automatic majority" and lessen the power of legal practitioners. The Times of Israel added that the bills restricting courts from reviewing Basic Laws and tightening government authority over judicial selections have both passed in their first readings.

The Buildup Before The Reforms: A Timeline

It is believed that it all started in November 2019, when Netanyahu was charged with fraud, breach of trust and accepting bribes after three years of investigation. Attorney General Avichai Mandelblit had charged him after investigating reports of him accepting gifts from millionaire friends and allegedly seeking regulatory favours for media tycoons in return for favourable coverage. However, he denied the allegations and pleaded not guilty as the trial continued. In June 2021, Centrist Israeli politician Yair Lapid successfully put together an unusual coalition of liberals, right-wing and Arab parties, removing Netanyahu from power after more than 12 years as prime minister, with far-right leader Naftali Bennett replacing him. However, in January 2022, Reports circulated in local and international media that the 73-year-old Netanyahu is negotiating a plea bargain to end his corruption trial. However, talks were said to have hit a roadblock over Netanyahu’s demand to be spared a conviction carrying a “moral turpitude” clause – which under Israeli law would force him to quit politics for years. In November 2022, in a remarkable comeback, Netanyahu’s Likud party, together with a coalition of far-right parties, won the fifth Israeli election since 2019, and ultimately, in 2020, Israel’s parliament sweared in Netanyahu as the Prime Mnister, making way for the country’s most far-right, religiously conservative government in history.

In January 2023, days after taking power, Netanyahu’s justice minister unveiled a plan to change the country’s judicial system, which critics slam as an attempt to weaken Israel’s judiciary and escape his corruption trial. The plan would give the government greater control over appointing Supreme Court judges. Netanyahu said that the changes are needed to curb activist judges who overreach their powers to interfere in politics. On January 14, thousands of Israelis protest against the proposal in several cities. Reports say some 80,000 protesters came out in Tel Aviv. The government dismisses the protests as the left refusing to accept the results of November’s election. Soon after, Netanyahu was forced to fire Aryeh Deri, his minister of interior and health, after the Supreme Court rules Deri cannot serve due to a 2022 conviction.

Weekly protests across Israel continued as the Netanyahu government reiterated its commitment to making the controversial changes, with thousands of people protesting near the Israeli parliament as lawmakers engaged in a heated debate on the bill proposing the controversial changes. The United Nations urged the Israeli government to pause pushing through its proposals, saying the changes could “risk weakening human rights protections for all”. Ultimately, on March 14, 2023, the Knesset advanced through with the first reading of the judicial changes bill.

What Are The Proposed Changes?

Since the government has complete dominance over the Knesset, the only checks on unrestrained executive authority are the Court's external check and the Attorney General's and government ministries' legal advisers' binding legal viewpoints. Accordingly, in order to remove these institutions' capacity to act as a check on presidential power, the administration recommended the following extreme changes. The following are the drastic changes which are suggested and referred to in the legislation:

• Altering the structure of the Judicial Selection Committee (JSC) to provide government officials exclusive influence over the selection: The procedure used to choose judges currently has been in use since 1953. According to Basic Law: Judiciary, a Judicial Selection Committee (JSC) made up of nine people—the Minister of Justice and another government minister, the President of the Supreme Court and two additional Supreme Court judges, two Knesset representatives, and two Israeli Bar Association representatives— is responsible for choosing every judge in Israel. The JSC's makeup is meant to achieve a balance between assuring professional nominations and permitting considerable political influence in the selection process because it has control over the selection, advancement, and dismissal of all judges in Israel. The government contends that judges continue to have veto power in the selection process under the existing system and is thus recommending changing the makeup of the JSC to give the government an indefinite majority and complete authority over the nomination of all Israeli judges.

• Hindering the judicial examination of Knesset legislation: Being able to declare a Knesset legislation as unlawful and overturn the same because it violates a Basic Law, particularly Basic Law: Human Dignity and Liberty, has been one of the most challenging subjects in the Court's relationships with right-wing lawmakers. According to the proposed change to Basic Law: Judiciary, the Israeli Supreme Court would only be able to declare a law unconstitutional with the unanimous consent of all 15 judges present while the court is sitting by a supermajority of 12 of the 15. In addition, the Knesset will be granted the authority to disregard the Court's ruling and re-enact the legislation with a majority of 61 members, therefore eliminating the prospect of a judicial review regarding the reproduced law. A majority of 61 members is a mandate that any coalition is assured to possess.

• Limiting judicial review of the government's executive branch, its officials, and its executive agencies: The 'reasonability' criteria in administrative review would be eliminated under the proposed revision. It will make it impossible for the Court to evaluate the choices made by the executive branch, including ministers and other executive agencies, and to overturn them if they are clearly inappropriate, as it currently has the power to do. The proposed reform will make it far more difficult, and in some cases impossible, to stop the abuse of executive power without due regard for human rights or society's interest.

• Transforming the Attorney General and government's legal advisers' functions from gatekeepers to facilitators: The government and its ministers are required to follow the legal advice of the Attorney General and the legal advisers in the various government ministries since they are currently professional positions dedicated to promoting the public interest. With the changes in place, legal advisers in government agencies will be promoted to positions of trust selected by the Minister via a politicised and unprofessional procedure under the proposed revisions. State officials will have unrestricted access to private legal counsels and private legal representation in court, and the status of the legal advisers' recommendations will change from binding to non-binding. These adjustments will allow the executive branch and its ministers to act beyond the bounds of the law, which is likely to encourage governmental corruption.

What Are The Risks Involved?

If the changes are put into practice, it will undermine the Supreme Court while granting the Netanyahu-dominated Knesset substantial control over judicial nominations. Critics worry that Netanyahu would use the legal system to have his trial delayed or cancelled, which he has rejected doing. The plan's opponents claim that it would force Israel towards a government in which the head of state controls all key axes of power, similar to those in Poland and Hungary.

Additionally, the opposition claims that Netanyahu's nationalist supporters want to undermine the Supreme Court in order to expand settlements on territory that the Palestinians desire for a state. However, settlements—which are prohibited by international law—have persisted throughout many Israeli regimes. Currently, illegal Israeli settlements in the occupied West Bank and East Jerusalem are home to around 600,000–750,000 Israelis. However, according to Palestinians, legislation that discriminate against them are still being introduced. Israel enacted a new law recently that would make it easier for officials to strip Palestinians of their citizenship and right to live in Israel and disputed East Jerusalem.

What Could Be The Future Course Of Action?

Following a surge of widespread demonstrations, Israeli Prime Minister Benjamin Netanyahu on March 27, 2023, postponed the contested proposal to revamp the judiciary and declared that he wanted to "avoid civil war" by setting up time to try to reach a settlement with his political rivals. The decision seemed to reduce some of the sentiments that have driven the unrest over the past three challenging months. However, because the fundamental problems that have divided the country were not addressed, the anti-government demonstration movement pledged to step up its efforts.

He spoke as tens of thousands of Israelis protested in front of the parliament and the biggest workers union in the nation went on a nationwide strike, dramatically intensifying the opposition to his proposal. Opposition leader Benny Gantz has said President Netanyahu’s decision was “better late than never”, but that he would not compromise on the “basics of democracy” in any dialogue on the judicial reform. Israeli President Isaac Herzog, who had staged a rare intervention into politics earlier on Monday to plead with Netanyahu to halt his judicial overhaul for the sake of national unity, said stopping it was “the right thing to do”.

While Netanyahu said that he will delay the second and third readings of the justice bill to the following parliamentary session in order to reach a consensus, however, despite nationwide protests, Netanyahu argued that the people were on his side and insisted the judicial reforms must go ahead. “We need to have the reforms in the judiciary,” he said. “We will never surrender.” Such an approach clearly seems to suggest that the Israeli government would ultimately go ahead with the reforms even after widespread opposition from all around the nation.

To sum it up, it may be stated that a closer examination of the reforms under consideration shows that there is legitimate cause for concern about how the reforms will be implemented. Several significant changes that will result in a total revamp of the judicial system are part of the structural reforms intended to reduce the judicial and legal monitoring of government and Knesset operations. Giving the government complete authority over selecting judges for all courts would erode the independence of the judiciary, impair judicial professionalism, and politicise the legal system.

Judges are likely to modify their judgements in all legal fields, including human rights law, criminal law, and even civil law, to suit the viewpoint of the coalition in charge if they are conscious that their nomination, promotion, and dismissal depend on the political party in power. Even more crucially, the proposed revision will explicitly revoke the Court's ability to invalidate or restrict any Basic Law, irrespective of its content. Given that the Knesset has the authority to approve any measure as a Basic measure without the requirement for a special process or a special majority, this is extremely detrimental. In addition, the Israeli government is pushing for additional measures to further consolidate unregulated power in the palms of the legislative branch, such as tightening political control over the military and police, shuttering the public broadcaster, and severely limiting the right to strike.

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