What Are the Details of the Judicial Reform Bill?
Reform on the Judges Selection Committee
The Current Selection Process:
A group of nine individuals constitutes the Judges’ Selection Committee. This includes the Chief Justice, two extra Supreme Court justices, the Justice Minister, a government representative, two Knesset members, and two members of the Bar Association. To appoint a new Supreme Court justice, a minimum of seven out of the nine members is necessary, providing the Supreme Court judges with the authority to veto. It is noteworthy to mention that since the establishment of the Committee in 1953, the three judges have consistently reached unanimous decisions regarding appointing justices to the Supreme Court.
The Proposed Changes:
The approved proposal, led by MK Simcha Rothman, Chairman of the Constitutional Committee, modifies President Herzog’s unsuccessful plan. The proposal expands the Judges’ Selection Committee to 11 members. This expanded Committee will consist of three ministers, three coalition Knesset members, two opposition Knesset members, and three Supreme Court justices. The framework for selecting magistrate and district judges will also change.
The new proposal aims to create a healthier balance, removing the Supreme Court judges’ veto power. During each Knesset term, a simple majority from the coalition will appoint the first two Supreme Court judges. The third judge will require the approval of one opposition representative, while the fourth judge onwards will require the approval of one committee judge, which means a broad consensus will be needed starting with the third appointment. This prevents the politicization of the Court.
The Committee’s composition will promote diversity among Supreme Court judges, reflecting various opinions and communities in Israel. The proposed framework protects legal diversity. Political impeachment of judges will not be allowed but would require the support of seven out of nine Committee members and approval from all three government branches.
The Committee will conduct public hearings for candidates, enhancing transparency about their legal and general worldviews. Additionally, the Chief Justice will be appointed by the Committee as opposed to the current seniority selection system.
Court Interference in Legislation and the Override Clause
The Current Reality:
The absence of checks and balances within the judicial branch in Israel has led to an imbalance of power. A significant transformation occurred in 1995 when the Supreme Court granted itself unprecedented authority. It took the power to determine which laws to strike down, who can petition the court, and to involve itself in various issues, effectively assuming the role of writing Israel’s constitution. As a result, democratic decisions are conditional, awaiting the court’s approval rather than being determined by public representatives.
The Supreme Court’s ability to strike down laws with a panel of just three judges, without requiring a supermajority, was not originally granted. The court gradually assumed this power during what is referred to as the Constitutional Revolution. An override clause already exists in the Freedom of Occupation: Basic Law, enabling the Knesset to override Supreme Court decisions with a majority of 61 members. It is important to note that there is no equivalent override clause in the Human Dignity and Liberty: Basic Law.
The Constitutional Revolution is founded on the premise that Israel’s constitution lies within the Basic Laws. Under this notion, when the Court invalidates laws, it does so on the grounds of their contradiction with the Basic Laws.
What is particularly concerning is that the Supreme Court has expanded its reach to interfere in the Basic Laws themselves, which are considered to be Israel’s constitution. This signifies a significant departure from the original intent.
The Proposed Reforms:
The process of striking down laws will require the full assembly of the Supreme Court, with 15 judges present to prevent any influence based on the panel’s composition. A supermajority of 12 out of the 15 judges will be necessary to invalidate laws.
Regarding the override clause, if the Supreme Court strikes down a law, the Knesset will have the opportunity to legislate it again within a limited timeframe, with a majority of 61 Knesset members. However, if the court unanimously invalidates a law, the Knesset will only be able to override it in the subsequent term rather than immediately.
In terms of the Basic Laws, the proposed reform suggests that the Supreme Court should not have the jurisdiction to rule on their validity. This adjustment brings Israel in line with other prominent democracies, as no other Western democracy permits its court to make determinations regarding the constitution itself.
The proposed amendments are intended to be moderate, aiming to define and regulate the powers of the Supreme Court while incorporating checks and balances into the current system. The objective is not to dismantle the system or entirely reverse the Constitutional Revolution but to establish a legal framework where the court is authorized to strike down laws.
The Current Reality:
The “reasonableness ground” enables the Court to make decisions instead of elected officials, even without a legal basis. It allows the Supreme Court to overturn government decisions, regardless of their legality, simply because a judge disagrees with them. While the Court plays a vital role in rectifying illegal state actions, unauthorized activities, and discriminatory practices, it was never intended to replace the judgments of other government bodies. There is no inherent reason to assume that the Court’s judgment is superior.
The adoption of the reasonableness grounds has also granted legal advisors the power to interfere in the decisions made by elected officials.
The reform aims to eliminate the reasonableness grounds, preventing judges from substituting their own discretion for that of legally appointed decision makers. It is crucial to emphasize that the Court will still fulfill its significant role in overseeing the government and conducting reviews based on established rules. These rules include examining lack of authority, ensuring due process, addressing illegitimate considerations, conflicts of interest, rights violations, discrimination, and adherence to clear legal standards.
Sourced from: “Details of the Reform.” הרפורמה המשפטית, https://legal-reform.org.il/en/details/. Accessed 13 July 2023.