There is a vast amount of disinformation that is being put out with regard to the reform. Before we can discuss the reform itself, it is essential to set the record straight:
It is not true that the government has been implacable regarding judicial reform – that members of the coalition pushed through legislation with undue haste and would consider no compromise.
The legislation that passed in the Knesset on July 24 is not the same as what was first brought forward by the Knesset Constitution, Law and Justice Committee. Changes were made to soften the legislation. Those changes were made unilaterally by the coalition, in hope of rendering the legislation more acceptable to the opposition.
When it became clear in late March that the opposition remained strongly opposed, Prime Minister Netanyahu stopped the discussion on the legislation and agreed to negotiations at the President’s house. By July, when there had been no compromise, Netanyahu then declared that legislation would move ahead, as it had been put forward in its last draft. Until the very end, there was talk of modifying the legislation further before a final vote was taken; but the opposition did not cooperate.
The Knesset is now in recess. Netanyahu has said there will be no further legislation brought forward until the winter session, giving time for compromises to be negotiated in the interim. If necessary, he said, he would delay legislation until November. (The composition of the justice selection committee will be considered next, and it is unclear whether any legislation beyond this will be brought forth in the near future.)
The legislation does not change how the Court has operated since Israel’s founding. This is a falsehood that is being floated. In fact, the judicial reform seeks to restore the situation that existed for 50 years before Court President Aharon Barak unilaterally made radical changes in Court procedures.
The legislation does not weaken Israel’s democracy. It strengthens democracy. The government is elected by the people, the Court is self-selected, without input from the electorate. Preventing the Court from excessively over-ruling government decisions on a subjective basis increases democracy.
Israel has the most active Court of any Western democracy. Judicial reform aims at bringing our Court in line with how the Courts of these other democracies operate.
The law that has now passed in the Knesset is on the Reasonableness Clause. This legislation was selected first because it was considered the least controversial. In fact, two prominent members of the opposition, MK Yair Lapid (Yesh Atid) and MK Gideon Sa’ar (National Unity), were on record as being for a change in the reasonableness clause before the last election. Their positions, which they subsequently reversed, were almost identical to the current legislation that just passed.
Before this law was passed, it was possible for justices to overrule legislation or executive decisions purely on the basis of a subjective judgement that it was not “reasonable.” This upset the balance between the three branches of government, giving too much arbitrary power to the Court. Court decisions must be founded in law, not the opinions of the justices.
The law that was passed says “the High Court shall not rule on the reasonableness of a decision of the Government, of the Prime Minister or any other Minister, and shall not issue an order on such matter.” (unofficial translation of the Hebrew)
This is an amendment to Basic Law: Judiciary.
It still provides latitude for the Court to rule on government and ministerial decisions on other bases.
No sooner was the legislation on the reasonableness clause passed on July 24, then several parties petitioned the Court to overturn the legislation. Justice David Mintz declined to invoke an injunction that would have put a hold on the legislation until the petitions could be heard.
Now Court President Esther Hayut has announced that Court hearings on the petitions will begin on September 12. In an unprecedented move, she is convening the full Court of 15 justices.
There are several reasons why the Court might not over-turn this legislation, including the fact that it would be a conflict of interest and that Court intervention might call attention to the fact that it intervenes excessively (which is precisely what the judicial reform legislation is addressing).
But the most significant reason is that the legislation is an amendment to Basic Law. The Court has never intervened in Basic Law, which it considers a quasi-constitution, and has, in fact, suggested in at least one ruling that such intervention might be inappropriate.
Prime Minister Netanyahu has refused to state unequivocally whether he would abide by a Court decision to overturn the Reasonableness law. In an interview with NBC, he said (emphasis added):
“I think we’ll have to follow two rules: One is, Israeli governments abide by the decisions of the Supreme Court. And at the same time, the Supreme Court respects the Basic Laws, which are the closest thing we have to a constitution. I think we should keep both principles, and I hope we do…
“…I hope that they don’t strike down, because I think we should abide by BOTH rules.
“It would be in American terms, as though the Supreme Court that is charged with keeping the constitution would nullify a constitutional amendment as unconstitutional. So, it sort of turns on itself and doesn’t make sense. I hope it doesn’t happen.”
Recent actions by the Court, however, suggest that it may move into this uncharted and problematic territory.