Introduction

In 2023, Israel faced an unprecedented domestic crisis as the government's proposed reforms to the judicial system and its operations triggered a significant outcry. The protest increasingly escalated and the streets of Tel Aviv went full including many of the other towns and cities across the country. Protesters demanded from the Prime Minister Benjamin Netanyahu to roll back the reforms. Undoubtedly, the political rivals spearheaded the protests cutting across political lines. Even the armed forces' personnel threaten to refuse to report for duty thereby threatening the security of the country.1 Thus, the proposed judicial reforms sparked widespread protests and debates across the country as well as in other parts of the globe. The entire episode highlighted the need for a critical analysis of Israel’s endeavors.

While the government and those who support they argue that the reforms are overdue, whereas those who oppose they say it would severely undermine democracy. Accordingly, the proposed reforms faced condemnation from various segments of Israeli society and expressions of concern from Jewish organizations worldwide. Judicial reforms are instrumental in shaping the legal system, ensuring the fair administration of justice, and upholding the rule of law. However, in politically charged environments, it is crucial to scrutinize the implications of reforms to assess their alignment with principles of judicial independence, transparency, and accountability.

Israel has embarked on a series of judicial reforms aimed at enhancing the efficiency and effectiveness of its legal system. Prime Minister Netanyahu and his coalition partners believe that the reforms are crucial to address what they see as an overly influential Israeli Supreme Court. They argue that these changes are necessary to ensure the government's ability to govern effectively is restored. They contend that the Court has encroached upon the authority of the legislative and executive branches, undermining the democratic process.2

However, amidst the public outcry and mass protests across the country, protesters expressed concerns about the potential consequences of these reforms on judicial independence, the separation of powers, and the erosion of public trust in the legal system. Critics argue that the reforms may unduly influence judicial decision-making, compromise the impartiality of judges, and undermine the fundamental principles that underpin a fair and robust judiciary. Those who were in support of the reforms argue that Israel’s parliamentary system inherently aligns the legislative and executive branches, making the judiciary the primary check on potential legislative overreach. Concerns have been raised about the perceived self-perpetuating nature of the judiciary, with the legal establishment wielding significant influence over judicial appointments.

On the other hand, those who are critical of the proposed reforms warn that they could increase the control of the legislative branch and weaken the courts. The views on these reforms vary, with some perceiving them as a restoration of the balance that existed during the early years of Israel's existence. Therefore, there are arguments in favor as well as counter-arguments against the proposed reforms, which makes it imperative to discuss the same to arrive at comprehensive understanding of Israel’s judicial reforms. It makes it imperative to critically analyze the provisions made and motivations behind them, as well as likely impact of the same on the political system and its functioning. This paper is an endeavor to critically examine the proposed judicial reforms, and evaluate their effects on the legal system. The paper also discusses the extent to which these reforms may contribute to a fair, transparent, and independent judiciary.

Government’s Judicial Reforms and the Concerns 1

• The reforms seek to diminish the Supreme Court's power to review and invalidate laws, enabling a simple majority vote in the Knesset to overturn court decisions.

• The government would gain more decisive authority in appointing judges, including those in the Supreme Court, by increasing its representation on the appointing committee.

• Under the proposed reforms, ministers would no longer be legally obligated to follow the guidance of their legal advisers, who currently operate under the guidance of the attorney general.

A recent development in Israel involved the passing of a reform by the Knesset, which effectively eliminated the authority of the Attorney General to declare a sitting Prime Minister unfit for office. There were speculations suggesting that this reform was possibly aimed at preventing such a declaration against Mr. Netanyahu, who was facing a trial on corruption charges, thereby raising concerns about potential conflicts of interest between the reforms and his ongoing legal proceedings. Thus, the proposed reforms smack of politically motivated rather than real need of the Israel polity. Accordingly, the subsequent section has dealt with in detail the imperatives of judicial reforms for Israel.

Political Conflict in Israel—The Background

Israel follows a parliamentary democracy, where the government's legitimacy depends on obtaining a majority in the Knesset, which is the country's Parliament. The government is formed through a coalition system, where various political parties join forces to create a ruling majority. This means that there is limited space for negotiations with the opposition due to the close relationship between the executive and legislative branches. However, it's worth mentioning that the judiciary functions independently from both the executive and legislative branches.

Due to the lack of a formal constitution, Israel depends on a set of Basic Laws that possess a distinct and quasi-constitutional standing. These Basic Laws outline fundamental principles and rights in Israeli society. In the 1990s, Aharon Barak, the President of the Israeli Supreme Court, played a key role in what was known as the “Constitutional Revolution.” This revolution granted the court the power to review and potentially invalidate laws passed by the Knesset if they were found to contradict the Basic Laws. Since then, the Supreme Court has revoked 22 statutes and decisions made by the legislature, asserting its authority as the guardian of constitutional principles.3

In recent times, there has been an increasing discussion among specific politicians in Israel regarding the distribution of power and the perceived influence of the judiciary, particularly the Supreme Court, and the legal advisers of the government. These politicians argue that the judiciary has accumulated too much power, potentially overshadowing the roles and privileges of the other branches of government. They argue that this authority could potentially infringe upon the legislative and executive branches’ ability to enact their agendas and make decisions independently. Critics often raise concerns about what they perceive as judicial activism, whereby the judiciary actively shapes policy and legislative decisions through its rulings. They argue that the Supreme Court, in particular, has exerted significant influence over sensitive and controversial issues, such as national security, land disputes, and the status of certain populations. This, according to critics, results in the court assuming a quasi-legislative role that undermines the democratic process and limits the authority of elected representatives.

Judicial Selection Committee

The procedure for choosing judges in Israel, which has been in use since 1953. It is governed by the Basic Law: Judiciary. According to this law, a Judicial Selection Committee is responsible for the appointment of judges throughout Israel. The committee comprises nine individuals, including the Minister of Justice, a government minister, the President of the Supreme Court, two more Supreme Court judges, two representatives from the Knesset (the Israeli parliament), and two representatives from the Israeli Bar Association. The structure of the Judicial Selection Committee is intended to maintain a combination of professional nominations and the inclusion of political influence in the selection process, thereby achieving a balanced approach. The inclusion of judges from the Supreme Court, representatives from the Knesset, and the Bar Association aims to incorporate diverse perspectives and prevent the concentration of power in a single entity.4

The JSC holds significant authority in the selection, advancement, and dismissal of judges in Israel. Its role is crucial in maintaining the independence and integrity of the judiciary. By involving multiple stakeholders, the JSC aims to ensure a fair and balanced approach to judicial appointments. In the 1990s, Israel experienced a significant shift in its judicial landscape, often referred to as a “constitutional revolution.” During this period, the Supreme Court of Israel witnessed a surge in its authority and a reevaluation of its role in relation to the other branches of government. These changes have had profound implications for the balance of power and the country’s democratic framework. One of the notable transformations during the constitutional revolution was the elimination of standing requirements for petitions against the government. The Supreme Court has ruled that every individual who petitions has the right to request that the government adheres to the law. This move aimed to enhance access to justice and ensure government accountability. Additionally, the Court narrowed the doctrine of non-justiciability, which deals with political questions, asserting that almost any government action or inaction can be assessed based on legal criteria. This expanded the Court’s jurisdiction and allowed for greater judicial review of governmental measures.5

The Court also adopted the “test of reasonableness,” which allowed it to reject government actions that didn’t consider important factors, relied on irrelevant reasons, or didn’t give enough importance to important factors. By using this test, the Court wanted to make sure that the government’s actions followed the law and safeguarded people’s rights. Furthermore, the Court interpreted the “Basic Laws” of 1992 in a manner that granted it the power to invalidate legislation passed by the Knesset. This development strengthened the Court’s role as the ultimate arbiter of constitutionality in the country. Although the intention behind these reforms was to strengthen the safeguarding of human rights, maintain the rule of law, and improve governmental accountability, they have faced criticism as well. Critics argued that the Court’s increased power and its engagement with politically sensitive issues led to decisions that were perceived as politically motivated and out of touch with the right-leaning preferences of the Israeli public.

The Attorney General - Government’s Legal Advisor

The role and responsibilities of the Attorney General in Israel:6

1. Legal Counsel: The Attorney General serves as legal counsel for the Israeli government and public authorities, providing guidance on various legal matters, including constitutional law, administrative law, and international law.

2. Political Neutrality: The office of the Attorney General maintains political neutrality, ensuring that individuals with strong political identities or known political activism are not appointed to the position.

3. Public Esteem and Respect: The Attorney General's office enjoys widespread admiration from the public, government officials, the Knesset, and the Supreme Court due to its professionalism and unwavering dedication to upholding the rule of law.

4. Appointment and Tenure: The Attorney General is a civil servant appointed by the government based on the recommendation of the Minister of Justice. The specific duration of the appointment is not specified, and the process for removal from the office follows a similar procedure as the appointment.

5. Head of Prosecution: The Attorney General possesses the significant authority to determine whether to bring charges, initiate investigations, close cases, extend the detention of individuals under arrest, seek the removal of parliamentary immunity, and halt criminal proceedings. However, it is important to note that only the Supreme Court has the power to overturn the decisions made by the Attorney General.

6. Representation in Legal Proceedings: The Attorney General represents the State in all courts and tribunals, handling criminal, civil, and administrative cases. The State Attorney, acting under the Attorney General’s direction, carries out much of this responsibility.

7. Legal Advisor to the Government: Serving as the government's legal counsel, the Attorney General provides guidance on legal matters to government officials, ministries, and public entities. They provide guidance on the interpretation of laws and appropriate legal procedures.

8. Legislative Guidance: The Attorney General plays a crucial role in ensuring adherence to the State's Basic Laws and appropriate procedures throughout the process of drafting and passing legislation. They advise the Division of Legislation in the Ministry of Justice and review government bills and private members’ bills for consistency with existing laws and rights.

The Religious Zionist Party raises concerns regarding the functioning of the Attorney General in Israel, highlighting the following problems:7

1. Concentration of Power: The Party argues that the Attorney General holds significant power, and as the saying goes, “all powers tend to corrupt, absolute power corrupts absolutely.” This concentration of power in a single individual raises concerns about the potential for abuse and undermines the principles of checks and balances.

2. Dual Role: The Attorney General’s dual role as both a legal advisor and the representative of the government in court is seen as inherently problematic. While legal advice should not be binding, the Attorney General’s position allows them to present the government’s position in court. This creates a situation where failure to follow the Attorney General’s advice can lead to adverse legal consequences for the government.

3. Lack of Government Representation: If the government’s position does not align with the Attorney General’s personal opinion or politics, they may choose not to present it in court, leaving the government without legal representation. This denies the government the opportunity to have its case heard, putting it at a disadvantage in legal proceedings.

4. Indictment Power: The Attorney General’s authority to indict senior governmental officials raises concerns about potential misuse. There is a risk that punitive measures may be pursued against officials who do not align with the Attorney General’s perspective, potentially undermining political independence and democratic principles.

5. Unchecked Authority: The Party argues that the Attorney General currently operates with a high level of autonomy, not being bound by any external factors. This unchecked authority gives rise to concerns about potential corruption and the erosion of democratic institutions.

Proposed Judicial Reform in Israel

It is in this backdrop of overriding Judicial powers of judiciary and the Attorney General that the government of Israel intended to inject reform to strike so called balance among the different organs of the government, i.e., Legislature, Executive and Judiciary. Accordingly, the judicial reforms that were proposed had four elements:

• the override clause,

• the removal of the reasonability test,

• changes in judicial appointments, and

• the role of legal advisers

The objective of these reforms was to reconfigure the distribution of power between the judiciary and the other branches of government. The aim was to address concerns about judicial activism and promote greater accountability and democratic checks and balances. The reforms have sparked debates and discussions regarding their potential impact on judicial independence, the rule of law, and the democratic functioning of the Israeli legal system. These four elements are therefore being discussed in detail to provide a comprehensive understanding about the same.

The Override Clause 8

In the absence of a formal constitution, Israel follows a framework of Basic Laws that delineate the division of powers among the government branches and safeguard specific human and civil rights. The suggestion of an "override clause" entails a proposal to allow the Knesset to enact laws that take precedence over a Basic Law.

This means that if a law infringes on human rights without sufficient justification, the Supreme Court can invalidate it as unconstitutional. However, with an override clause in place, the Knesset would have the power to re-enact the law despite the court’s ruling, essentially disregarding the Basic Law’s incompatibility. At present, when a law enacted by the Knesset contradicts a provision within a Basic Law, especially if it severely infringes upon human rights without adequate justification or proportionality, the Supreme Court holds the power to declare the law "unconstitutional" through its interpretation of the Basic Laws. In such instances, the court has the ability to invalidate the law, rendering it non-binding and ineffective.

The Reasonability Test 9

Under proposed judicial reforms in Israel, one significant change involves the removal of the “reasonability test” that the Supreme Court currently applies when judging Knesset legislation, appointments, or other government decisions. The “reasonability test” refers to the court’s assessment of whether a government action is reasonable or rational in light of the circumstances.

By eliminating the “reasonability test” the intention is to limit the Supreme Court’s power to review and potentially overturn decisions made by the Knesset and the government. This means that even if a court finds a decision to be unreasonable or lacking in rationale, it will no longer have the authority to invalidate it on those grounds.

Changes in Judicial Appointments

Two sets of proposals have been presented to modify the Judicial Selection Committee’s composition in Israel. The first proposal, published on January 11, 2023 by Minister of Justice Levin, 10 and the second proposal, put forward by Knesset member Simcha Rothman,11 Chair of the Constitution, Law, and Justice Committee, on January 18, 2023 share a common objective. The two proposals seek to change the composition of the committee, shifting it from being primarily comprised of legal professionals such as judges and lawyers to a committee under the control of the government coalition. These proposed changes have raised concerns about the potential shift in power dynamics and the impact on the independence of the judiciary.

Proposed Changes in Judicial Appointments in Israel are as follows: 6

1. Composition of the Judicial Selection Committee:

• Minister of Justice Levin’s proposal:

• The majority of members, who are currently legal professionals, would be replaced by government representatives.

• The committee's composition would comprise 11 individuals, which includes three Supreme Court justices, three government ministers, three members of the Knesset (two from the coalition and one from the opposition), and two public representatives.

• The ruling coalition would hold authority over seven out of the 11 members, granting them a majority that enables the appointment of justices to any court, including the Supreme Court.

• Knesset member Simcha Rothman’s proposal:

• The Israel Bar Association's two representatives would be substituted by an additional government minister and an extra member of the Knesset.

• The committee's composition would include the chairperson of the Constitution, Law, and Justice Committee, one member from the coalition, and one member from the opposition.

• Changes would be made in the representation of the judiciary, where the president of the Supreme Court and two retired judges would be appointed by the minister of justice with the approval of the president of the Supreme Court.

• Depending on the appointment of a Supreme Court president who aligns with their ideological stances, the coalition could potentially hold control over eight out of the nine seats on the committee.

2. Selection of Supreme Court President:

• Minister of Justice Levin’s proposal:

• The current seniority rule, where the longest-serving justice becomes the president, would be discarded.

• The president would be elected for a nonrenewable period of six years by the committee.

• Presidential candidates would no longer be mandated to have previous experience serving on the court.

The Role of Legal Advisors

The role of legal advisors are as follows: 12

• Legal advisors are responsible for providing the necessary legal support to ensure ministry policies are grounded in law.

• They help the ministry implement its policies while ensuring compliance with legal boundaries and principles of good governance.

• Legal advisors serve as gatekeepers, ensuring that the ministry operates within the law and adheres to established norms.

• The appointment process for legal advisors should prioritize their ability to exercise independent judgment, separate from the influence of the ministry.

• Independent judgment is crucial to enable legal advisors to apply their expertise effectively and impartially.

• Their role is to balance the ministry’s policy objectives with legal compliance and good governance standards.

• Legal advisors act as gatekeepers within their ministries, ensuring adherence to the rule of law.

• They play a vital role in maintaining legal compliance and serving as an “internal check” on the government.

• The Attorney General oversees this system, with legal advisors acting as an extension of the Attorney General’s office.

• They have a responsibility to alert the Attorney General of potential issues or decisions requiring intervention.

• This collaboration between legal advisors and the Attorney General helps ensure proper governance and upholds the rule of law.

Minister of Justice Yariv Levin recently unveiled his judicial reform package, which includes a plan to reduce the authority of government legal advisers in compelling the government to adhere to their legal stances. Levin argues that these proposed measures aim to rectify a democratic anomaly where crucial decisions in Israel are being made by individuals who were not elected.

The reforms aim to address concerns about important decisions being made by unelected officials. The draft bill states that legal advice from government legal advisers would not be binding on the government or ministers. The proposed reforms would allow the government and ministers to determine the legal position presented in court and choose their representatives before judicial bodies. The intention is to provide more autonomy to the government and ministers in legal matters without changing the overall legal framework in Israel.

Proponents of the Judicial Reform

Israel has experienced a shift towards the extreme right in its political landscape over the recent years. The far-right political party argue that there is an imbalance between the judiciary and the executive and legislative branches. They contend that the judiciary is predominantly influenced by liberals and leftists, while the political climate has shifted towards the right. The government's objectives include granting extensive exemptions from military service to religious Jews and enacting a law that prevents the Prime Minister from being removed from office without authorization from the Knesset and Cabinet. However, there is concern that the Supreme Court might reject these plans unless the powers of the judiciary are restricted. Therefore, the right-wing parties view the existing judicial structure as an obstacle to their efforts to reshape the Israeli state. 10

Proponents of judicial reform argue that:13.

• The process of appointing judges in Israel is distinctive when compared to other democratic nations. One notable aspect is the composition of the committee responsible for judge selection, which grants substantial authority to current judges and provides them with the ability to veto nominees they do not approve of. Under different political governments, the judges’ side tends to vote together, resulting in judges having absolute control over appointments.

• Advocates of the reform argue that the introduction of the override clause would result in improved representation of different segments of Israeli society and enhance public trust in the justice system.

• Supporters assert that the Supreme Court has assumed unrestricted authority to invalidate laws passed by the Knesset, operating without sufficient checks and balances.

• Advocates argue that the implementation of the override clause is essential to reinstate the equilibrium of power among the government branches and align Israel with other democratic nations.

• They maintain that the Supreme Court should not hold ultimate decision-making power over policy issues and the determination of which rights should be classified as "Basic Law."

• Supporters of the reform point out that the current system of legal advisors often leads to conflicts with ministers’ agendas, hindering policy reforms.

• They criticize the representation of the state’s position in court, where the legal advisor sometimes contradicts the position of the office they represent.

• Supporters question the use of the “Reasonability clause” and argue that it allows the courts to unjustly interfere in policy creation without proper legal justification.

• They raise concerns about the court’s authority to determine what is considered reasonable, and why a judge’s opinion is considered superior to that of a government minister.

Opponents of the Judicial Reforms

Opposition leader Yair Lapid strongly condemns the government’s proposed judicial reform plans, characterizing them as a drastic and detrimental transformation of the democratic system. Lapid argues that the reforms amount to an extreme regime change, likening it to canceling the principles enshrined in the Declaration of Independence and isolating Israel from the community of liberal nations. He asserts that these measures do not seek to improve democracy but rather to erode it, emphasizing that a true democracy cannot exist when a government is granted unchecked authority and eliminates essential checks and balances. In his view, such actions undermine the very foundations of democracy and compromise the principles that uphold a fair and just society.14

According to Attorney General GaliBaharav-Miara, the government’s comprehensive proposals for substantial reforms to the legal and judicial system in Israel would grant the government almost unlimited power without establishing any safeguards for individual rights or for the democratic nature of the country. The Attorney General’s Office emphasized that the proposed legislation, as communicated to Justice Minister Yariv Levin, would result in a fundamental alteration of the state’s governance, undermining its democratic principles. The concerns raised suggest that the proposed reforms could have significant implications for the balance of power and the preservation of democratic values in Israel.15

The extensive overhaul of the legal and judicial system in Israel has generated widespread concern across various sectors, including finance, business, security, and academia. Critics argue that the proposed reforms go too far and would eliminate the only existing mechanism for checks and balances on the Israeli legislative branch. They express apprehension that the independence of the judiciary would be compromised, potentially undermining rights that are not protected by Israel’s quasi-constitutional Basic Laws, such as minority rights and freedom of expression.

A February 2023 poll conducted by the ‘Israel Democracy Institute’ revealed that a minority of Israelis support the reforms, with the majority advocating for a compromise. Furthermore, a substantial number of individuals hold the view that the Supreme Court should preserve its authority to nullify laws and that the existing process of appointing judges should remain unaltered. Former Mossad chiefs have also voiced opposition to the reforms, emphasizing that the division over the issue is detrimental to Israeli security. Moreover, hundreds of reservists in the Israeli army have expressed their refusal to serve if the reforms are implemented, expressing concerns that the changes would diminish Israel’s status as a full democracy.16

Conclusion

Democracies across the globe have been facing such imbalances in their polity and their different organs of government have been found at loggerheads. The organs of government have remained involved in one-upmanship contest since the commencement of politically organized society. The most obvious conflict that has been witnessed in most democracies are between the Parliamentary Executive and Judiciary. Even in case of India once the then Prime Minister Late Indira Gandhi had to advocate for committed judiciary and bureaucracy, as she found them truly conservative. She advocated for the simple reason that the judiciary being conservative was nullifying the most legislative proposals related to change in policy and institutions to put the country on right track of socio-economic development.

However, on most occasion such contestations have been ridden with vested interests and are found politically motivated. Reforms are the need of most polities to keep pace with the change in social, political, economic and cultural life of the people on account of development in science and technology and overall modernization. However, the reforms must be in consonance with the demand of the political system and not driven by vested interests of political leadership and political parties. Power politics has made it imperative for political parties to inject such changes in the institutional mechanisms that they are able to sustain themselves in power. Any reform driven by such vested interests and motived by lust for power is detrimental to the entire political system including the very freedom of citizens.

Therefore, it is quite obvious that all the branches of governance i.e., Legislature, Executive and Judiciary etc. are required to keep reforming sometimes by way of legal interventions and sometimes adapting in their style of functioning according to the imperatives of social, economic, political and cultural modernization of the polity, as a whole. Israel too would need to reform its institutions but it must be done in right earnest, rather than be driven by power motive. Israeli political dispensation needs to weigh its reforms in terms of its impact on its citizens and other relevant institutions within their polity.

A critical analysis of Israel’s judicial reforms reveals that most of the important institutions like Army, Judiciary itself, and its intelligence organization Mossadhave revealed their reservations on the proposed reforms. It seems that the impact of proposed judicial reforms on the legal system are going to be detrimental to their freedom and independence of functioning. Hence, it is difficult to ensure that any modifications made with the judicial system is difficult to align with the principles of fairness, transparency, and an independent judiciary. By carefully evaluating the concerns raised by critics, such as compromises to judicial independence, the separation of powers, and the erosion of public trust, it is possible to make informed judgments about the reforms.

Hence, maintaining a balance between effective governance and upholding the principles of judicial independence, transparency, and accountability is of utmost importance. It is necessary to ensure that any reforms implemented do not undermine the rule of law or the integrity of the judiciary in Israel. A thorough and comprehensive evaluation of the proposed judicial reforms and their potential consequences, policymakers can make informed decisions that enhance the legal system and foster public confidence. Additionally, open and inclusive discussions involving stakeholders from various sectors of society can contribute to a comprehensive understanding of the implications of the reforms. The government may push for the necessary reforms taking the citizens in confidence through a nation-wide debate and discussion, to sound increasingly democratic. This would certainly enhance the acceptability towards genuine reforms.

Ultimately, the goal should be to establish a legal framework that safeguards the rule of law, promotes impartiality, and ensures equal access to justice for all individuals. Regular assessments, public discourse, and ongoing monitoring of the reforms will be essential to evaluate their effects and make necessary adjustments to maintain a fair, transparent, and independent judiciary in Israel.