Following the election of long-time Likud party leader Benjamin Netanyahu last November, the Prime Minister has assigned positions in government to politically repressed right wing politicians who have had long-standing issues with the Israeli Supreme Court. Netanyahu himself was indicted in 2019 on ongoing bribery and corruption charges, in which the Supreme Court stripped him of his public portfolios. Since then, Netanyahu has been very vocal against the Israeli Supreme Court aligning himself with the far-right political coalition he has created to formulate reforms curtailing the court’s power (2). Prime Minister Netanyahu’s proposed reforms have drawn considerable backlash from the public prompting debates, protests, and strict assurances from Israeli politicians that negotiations will continue. Experts warn that Israel’s political instability and recent terror attacks will push Israel’s government to collapse. It is important to understand the compositions of Israel’s legal institutions, the views of both sides, and the arguments put forth in order to combat this urgent political and social crisis.
The Israeli Supreme Court was formed during the War of Independence in 1948 (1). The court was outlined in Israel’s unofficial constitution, the Basic Laws of Israel, and initially composed of five judges elected by the Knesset. The Judges Law was enacted in 1953 creating the nine-member Judicial Selection Committee (1). The committee is composed of members from all legal branches; the Knesset, the government, the Supreme Court, and the Israeli Bar Association. Over the past twenty years, the Judges Law was gradually amended to reflect a more fair appointment system. Some of the most important amendments include the provision that committee members will vote according to their personal beliefs and not from the legal institutions that appointed them. Another provision states the committee nominates members to the court via a seven-to-nine majority vote (1). The most recent amendment states that interviews conducted by the committee for court nominees must be recorded and made available to the public. These systems were designed and amended precisely to have legal professionals dominate the court and the committee, limiting government influence over the judiciary branch.
Israel’s legal system is composed of laws stemming from cases and precedents set by the court and common law as well as the rights and principles enumerated in Israel’s Declaration of Independence and Basic Laws. The Supreme Court in Israel has the highest judicial authority over all lower courts, which is called appellate jurisdiction. The court also has original jurisdiction over administrative legal issues, which means they are directly responsible for overseeing any grievances submitted towards the government. Religious and labor courts are supervised by the Supreme Court as well. Lastly, the Supreme Court has judicial oversight over all laws passed by the Knesset, meaning they have the authority to assess the legality of all legislative acts.
The Israeli Supreme Court has ruled on a number of important cases relating to the Israeli-Palestinian conflict, settlements, ultra-Orthodox groups, and immigration, putting itself directly in the political and social spotlight of the nation. Its increasing power and authority have carved a path for decreased trust in other political institutions as well. A 2022 study found that public trust in the Supreme Court was 41%, with even lower numbers directed towards other political institutions themselves (1). Moreover, it is important to note that many Israelis believe reforms are necessary but some are too extreme (standwithus).
The reforms aim to reduce the power of the Israeli Supreme Court. One of the reforms would allow the Knesset to overturn any ruling by the Supreme Court through a narrow majority, which means a vote of 61 out of 120 members. Another reform would give Knesset members the power to appoint judges instead of the entirety of the Judicial Selection Committee. As a matter of fact, some of the most controversial proposals aim to reform the Judicial Selection Committee itself. Knesset member Simcha Rothman has proposed to have the Judicial Selection Committee composed of an additional Knesset and government member, effectively giving the power of court appointment to the ruling coalition in the Knesset. Another proposal seeks to limit the court’s ability to rule based on constitutionality of Israel’s Basic Laws, specifically rulings based on civil rights violations. Furthermore, proposals have been introduced to limit the court’s power of judicial review and oversight.
Supporters of these reforms, largely from Israel’s ideological right, say these reforms are necessary in order to give power of legislation to elected officials rather than appointed judges (standwithus). Supporters accuse the court of being an agent of the Israeli ideological left, who often rule in favor of minority communities such as Arabs and Palestenians. Another criticism is of the appointment process itself, which some believe allow judges to appoint themselves to the court and act as one singular decision-making body without ideological dissent (1). Moreover, supporters of the reform believe the court doesn’t represent significant members of the Israeli public such as Mizrachi Jews or Arab citizens. The reforms would reflect the ideological composition of the country and the ethnic makeup of the people.
People who are critical of the reforms believe that the court will fall under the power of the legislative branch, effectively consolidating its power as the leading branch of government over all others and disrupting the balance of power. Critics view the proposals as an affront to the system of Israeli democracy itself. The systems of checks and balances would be put into jeopardy as court authority over legislation is weakened, some argue. Critics also believe that supporters of the reform rely on unrealistic examples of foreign court systems that would not fit well in Israel. They state that the comparative studies found to support the reforms do not take into account the fact that the ruling party will be given more power in these reforms (1).
The judicial process has its roots in Jewish history and law. Most notable examples include the Torah, the Sanhedrin, and Halakha. All of which enumerate the universal codes of justice and morality. These reforms are an expression of Israel’s democratic and Jewish principles, as the two institutions go hand in hand. The result of these reforms and ongoing negotiations won’t be certain for quite a while since debates are just beginning. The only solace can be found in reiterating the importance of democratic openness and political change through nonviolence, which is taking place as we speak. Therefore, Israel remains a strong and vibrant democracy in spite of the recent social and political developments.
Sources:
- The Fight Over Judicial Appointments in Israel – Lawfare (lawfareblog.com)
- Netanyahu’s Judicial Overhaul Proposal Sets Off Fury in Israel – The New York Times (nytimes.com)
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