We shall focus here on the four components of the reforms proposed by Justice Minister Yariv Levin that are presently being discussed by the Knesset Constitution, Law and Justice Committee: the procedure by which judges are nominated; the authority of the judiciary to void laws; the powers of the attorney general and the ministerial attorneys; and the court’s ability to examine whether laws and executive decisions are reasonable.
The proposal does not deal with many issues that remain to be corrected but the government emphasizes that it will introduce additional components of the reform in the future.
How are judges nominated?
Judges are ritually nominated by the president of Israel who always follows the selection made by a committee of nine members: Two ministers (including the justice minister who chairs the committee); two Knesset members (traditionally one of them representing the opposition); two representatives of Israel Bar Association; and three Supreme Court justices (who traditionally vote in tandem).
Supreme Court justices must be elected by a majority of at least seven members of the committee. In many cases, the representatives of the Bar Association and the opposition Knesset member join the Judges who consequently enjoy not only a veto power but effective domination of the committee. It should be noted that in the vast majority of democratic countries, Judges are nominated by politicians and that the judiciary does not have any involvement in the process.
It has often been argued that the Israeli procedure prevents pluralism and diversity. Levin is going halfway. He suggests changing the composition of the committee by raising the number of its members and by replacing the Bar Association representatives by public representatives to be nominated by the government. Since the replacement of Supreme Court Judges occurs usually due to retirement, changes in the composition of the court would be very gradual and consequently, the political balance and diversity of the court would likely be slow.
During the last three decades, the Supreme Court took the authority to void laws and exercised this authority in 22 cases. This development has never been supported by Knesset legislation. In addition, numerous bills that were considered by the executive and the legislature did not bear fruit because of the concern that the Court may invalidate them.
Although Israel has never accepted a formal constitution, the court decided in 1995, contrary to the understanding until then, that Basic Laws are superior to regular laws, granting itself the power of judicial review of legislation. It could be doubted whether there is a sound legal basis to this development. Furthermore, the employment and scope of judicial review in Israel are, by far, wider and more frequent than in other countries.
Judicial review and override
LEVIN REFUSES to cancel the court’s power of judicial review as demanded by many critics of the judiciary. His proposal is that the Supreme Court will preserve its power to void laws but will need a special majority in cases it decides to employ this power. However, a majority of Knesset members may overrule such decisions. The Knesset will not have an overruling power if the decision to invalidate a Knesset law is supported unanimously by all the members of the Supreme Court.
Powers of the attorney-general and ministerial attorneys
The attorney-general (AG) of Israel is nominated by the Israeli government but once nominated, the AG enjoys powers unparalleled in any other country. It has frequently been suggested that the AG is the most powerful person in Israel. The AG’s rulings to the government are binding and cannot be challenged.
Likewise, the legal advice of the ministerial attorneys, who are subordinate to the AG, is binding and cannot be challenged by the ministers. The attorneys have enjoyed the power of the last word since the early 1990s, following rulings of the Supreme Court. Hence, it is often argued by politicians of both sides of the aisle that final decisions on policies and activities are in the hands of attorneys.
The state attorney (SA), who is in charge of the state prosecution, is also subordinate to the AG. The AG is also in charge of representing the public interest vis-à-vis the government and also represents the government in court. In cases when there are differences of opinion between the executive and the AG, the latter has the authority to either prevent the presentation of the genuine stance of the former in court or to allow it to be represented by a private attorney.
Levin suggests splitting the powers of the AG. Thus, the SA and state prosecution will not be subordinate to the AG. He proposes that ministerial attorneys will be nominated by ministers and that attorneys will not have the last word power on decisions and activities of the executive. The government, the prime minister and the ministers will have the authority to decide who represents them in court.
The court’s ability to examine whether laws and executive decisions are reasonable
The issue that Levin proposes to change most dramatically is the question of reasonableness. In numerous cases, the Supreme Court, acting as the High Court of Justice, decided to forbid planned and actual activities arguing that they are not reasonable. It is not difficult to demonstrate that some of the courts’ decisions were quite absurd.
Almost always, critics of the Supreme Court noted that such decisions are made without clear authority while the executive remains responsible for the outcomes. It should be clarified that we are only referring to cases where it is clear that the relevant decisions are definitely legal. Levin proposes to limit the consideration of reasonableness to cases where it is clear that decisions are made on the basis of irrelevant considerations forbidden by well-known norms of administrative law, such as discrimination and conflict of interest.
As mentioned above, there is no doubt that the Israeli legal system requires reform on many other issues. One can only hope that future stages will be as restrained and as reasonable as the proposals discussed here.
The writer, a professor, is a former chair of the Political Science Department of the Hebrew University and the current chair of the Israel Political Science Association. He is a senior fellow at the conservative-libertarian Kohelet Policy Forum, which has advocated for judicial reform for a decade.