Israel is facing a major constitutional crisis over the government’s plans to reform the judicial system and limit the power of the courts. The reforms, which were passed by the Knesset in July, have sparked massive protests across the country and drawn criticism from legal experts, former security officials, opposition parties and international observers.
The reforms aim to curb the judiciary’s influence over lawmaking and public policy by limiting the Supreme Court’s power to exercise judicial review, granting the government control over judicial appointments and limiting the authority of its legal advisers. The government argues that the reforms are necessary to restore the balance between the elected legislature and the unelected judiciary, which it accuses of being too activist and liberal. However, critics say the reforms will undermine the rule of law, democracy and human rights in Israel, and protect Prime Minister Benjamin Netanyahu from prosecution in his ongoing corruption trial.
The Supreme Court has been at the center of many controversial issues in Israel’s history, such as ruling on matters of religion and state, civil rights, land disputes, security policies and constitutional challenges. The court has also assumed the right to declare Knesset legislation unconstitutional since 1995, when it adopted the Basic Law: Human Dignity and Liberty as a quasi-constitution. The reform would allow the Knesset to override such a ruling by reintroducing the legislation and approving it with a simple majority of one.
The reform would also change the composition of the Judicial Selection Committee, which appoints judges to all levels of courts in Israel. Currently, the committee consists of three Supreme Court justices, two cabinet ministers, two Knesset members and two representatives of the Israel Bar Association. The reform would reduce the number of Supreme Court justices to two, increase the number of cabinet ministers to three, and give the government a veto power over any candidate. This would effectively give the government a majority on the committee and enable it to appoint judges that align with its political agenda.
Another aspect of the reform is to limit the role of the government’s legal advisers, who are guided by the attorney general and provide legal counsel to all ministries and agencies. Currently, ministers are required to follow the advice of their legal advisers by law, and cannot act against it without risking legal consequences. The reform would make their legal advice a recommendation rather than binding on the ministers, and make them subordinate directly to the ministers rather than to the Justice Ministry’s professional oversight.
The reform has been challenged by several petitions filed to the Supreme Court by various groups and individuals, including former chief justices, former attorney generals, former military chiefs, human rights organizations and opposition parties. The petitions argue that the reform violates Israel’s basic principles of democracy, separation of powers and judicial independence, and that it is motivated by personal and political interests rather than public interest. The petitions also claim that the reform requires a constitutional amendment rather than a regular legislation, which would require a special majority of 61 out of 120 Knesset members.
The Supreme Court has scheduled a hearing on the petitions for September 15, 2023. The hearing is expected to last for several days and involve dozens of lawyers representing both sides. The court’s decision could have far-reaching implications for Israel’s political system and its future as a democratic state. The court could uphold the reform as constitutional, strike it down as unconstitutional, or partially accept or reject some of its provisions. Whatever the outcome, it is likely to spark further controversy and polarize Israeli society even more.