Justice Minister Yariv Levin has declared the beginning of regime change in Israel. He is envisioning a transformation of the Israeli Justice system: from the current situation of separation of powers and checks and balances – to the elimination of the independence of the courts and unbridled governmental power. From the current professional selection process of Judges to a court made up of political appointments. And from the current legal framework in which the government is required to justify its actions, to a government that is free to act in an arbitrary and capricious manner.
All this is being presented under the false cloak of “governance.” The victims of this change will be the entire democratic system in Israel and the human rights of everyone living in Israel and in the Occupied Palestinian Territories.
This document outlines the four major proposed changes to the Judicial system and ACRI’s position on each of the proposed changes.
1. The Override Clause
Current situation: The Supreme Court has the authority to disqualify laws or sections of a law if they contradict one of Israel’s Basic Laws, and particularly the Basic Law: Human Dignity and Liberty. In other words, the Court can strike out laws the cause disproportionate damage to human rights.
Levin’s proposal: To enact the Override Clause, which will allow the Knesset to reenact a law disqualified by the Supreme Court, with a majority of 61 MKs.
Meaning of the proposal and the danger to democracy and human rights: The proposal will effectively eliminate the possibility for the Supreme Court to disqualify legislation that violates human rights. With the threshold set at just 61 MKs, the coalition will easily be able to reenact any law disqualified by the Supreme Court and to remove the modest protections established by the Knesset in the Basic Law: Human Dignity and Liberty.
The damage:
Damage to the separation of powers, granting an almost unlimited power to the Knesset and the government (tyranny of the majority)
Minorities and disadvantaged groups will be left without legal protections
2. Abolition of judicial review of Basic Laws
Current situation: The perception is that Basic Laws in Israel have a higher normative status than other laws. However, the legislative process of Basic Laws is similar to other laws. It is therefore quite simple to legislate or amend Basic Laws. These changes are made quite often in the Israeli system. The High Court has in the past held several hearings on disqualifying basic laws. The court established two grounds for intervention: the first ground is the "unconstitutional constitutional amendment", which examines whether a constitutional amendment goes against the fundamental principles of Israel as a Jewish and democratic state. The High Court has determined that the judicial intervention on this will only be in the most extreme cases. The second ground for intervention is in the case of abuse of the constituent authority, for example, when an ordinary law is legislated as a basic law, or the basic law is used not for a general need but for a personal need of a particular government.
Levin’s proposal: To prevent the Supreme Court from overturning basic laws.
Meaning of the proposal and the danger to democracy and human rights: The government will be able to amend basic laws to change the foundations of the regime or to violate human rights and the court would not have authority to intervene or hold hearings on the issue. Thus, for example, the previous Netanyahu government passed the Nation State Law, which is a basic law, and included a clause allowing discrimination against Arabs in housing. The High Court of Justice did not invalidate the clause but interpreted it in a way that excludes the possibility of using it in a discriminatory way. Levin's proposal would prevent such a possibility. Another example is the proposed basic law of immigration that the new government seeks to pass. The draft law includes a series of violations of human rights. If this proposal will pass, the High Court will not have any authority to review the law or protect the human rights of the asylum seeker and migrant communities.
3. Abolishing the Ground of Reasonableness (Arbitrariness Reform)
Current situation: The courts have the authority to disqualify a decision taken by an administrative authority (a Minister, government ministry, governmental institution, civil servant or local authority) if they find the decision to be unreasonable. The ground of reasonableness constitutes the last defense for the citizen against a government that uses its powers in an arbitrary and discriminatory manner.
In practice, the court has established that it is not its function to replace the discretion of the authority, and it will intervene only if the decision is unreasonable – i.e. a decision that no reasonable public official would have taken.
Levin’s proposal: To abolish the ground of reasonableness, so that the court will not be able to rule that an administrative decision is unreasonable.
Meaning of the proposal and the danger to democracy and human rights: The proposal means that policy makers and civil servants will be able to make arbitrary and discriminatory decisions based on personal or political interests, without paying attention to vital considerations. Citizens will be unable to turn to the court in an attempt to change the decisions.
The damage: Violation of human rights, particularly the right to equality, due process, and access to the courts.
4. Appointment of Legal Advisors in Government Ministries
Current situation: Legal advisors are not political nominations, but professional ones. The legal advisor is accountable to the Attorney General, and is meant to act as an impartial representative of the law.
Levin’s proposal: The legal advisor to a ministry will be appointed by the Minister, i.e. it will be a political nomination, designed to serve the agenda of the minister.
The meaning of the proposal and the danger to democracy and human rights: The reform will turn the legal advice system into one that serves politicians rather than the public. Legal advisors will be loyal first and foremost to the Minister who appointed them. They will not intervene when a Minister is seeking to damage human rights or act in corrupt manner, as it is likely that they will lose their job. Political interests will be prioritized over the public interest and the Rule of Law.
5. Appointment of Judges
Current situation: Judges are selected by a committee that includes representatives of the legal system and the political system. Representatives of the legal system are judges and attorneys of the Israeli Bar, and they currently hold the majority of the committee. The current composition of the committee ensures that the appointment of judges will reflect a balance between professional considerations and political considerations, including the representation of all groups in the population. It is already impossible to appoint a Supreme Court Justice without the support of elected representatives, since a majority of seven out of the nine committee members is required for this purpose.
Levin’s proposal: Representatives of the government and the Knesset will replace the representatives of the Israeli Bar, so that the politicians from the coalition will always constitute a majority.
The meaning of the proposal and the danger to democracy and human rights: The change will seriously impair the professional character and independence of judges. Judges who hope to advance through the system will be forced to consider the politics of the current government, rather than ruling in accordance with their professional understanding of the law, in an egalitarian manner and without seeking favor. Instead of a system favoring the most capable and professional judges, it will favor the judges whose decisions serve the government of the day. Personal connections will take precedence over capabilities. A court that is less professional and less independent will not be able to protect human rights nor address any kind of government corruption.
6. Public Hearings for Judicial Appointments
Current situation: Judges are selected by a committee in which representatives of the judiciary and representatives of the political system sit, in which the professionals have a majority, (as explained in the previous section).
Levin's Proposal: As part of the process of selecting Judges for the Supreme Court, there will also be a public hearing for the nominated candidates in the Knesset's Constitution Committee.
Meaning of the proposal and the danger to democracy and human rights: Transparency in the process of selecting judges is not necessarily a bad thing if it is done properly, and there have already been initiatives in the past to hold a public hearing in the committee for selecting Judges. However, transferring the hearing to the Knesset means that there will be a sort of "field trial" for the top candidates, where they will be questioned about their views and positions regarding political and controversial issues. Instead of Judges being chosen for their legal expertise and professionalism, they will be chosen for their political opinions.
7. Appointment of the President of the Supreme Court
Current Situation: The seniority system - upon the retirement of the president of the Supreme Court, the most senior Judge serving on the Supreme Court is appointed to be the President. This appointment method guarantees a neutral criterion in choosing the president of the court, which also guarantees a lot of professional experience. It should be noted that although the president has certain privileges stipulated by law, the ruling of the President is equal to the ruling of any of the other Judges.
Levin's proposal: The seniority system will be abolished, and the appointment of the president of the Supreme Court will be made by the government. The government will even be able to appoint an external President to the Supreme Court, who was not a judge there at all.
Meaning of the proposal and the danger to democracy and human rights: Together with the change in the composition of the committee for the selection of judges, this is a serious danger to the independence of judges, whose promotions will be determined not according to a neutral and equal criterion but according to how satisfied the politicians are with their rulings as well as a danger to the authority and professionalism of the President of the Supreme Court.
8. Amendment of section 7a of the Basic Law
The government plans to amend section 7a of the Basic Law: The Knesset in order to impair the representation of Arab citizens in the Knesset, and perhaps even prevent it entirely.
As part of the coalition agreements, the various factions agreed that the above-mentioned section 7a will be amended. The proposed amendment will make it harder to disqualify Jewish parties and representatives who incite to racism from standing for the Knesset by removing the grounds of incitement to racism. Conversely, it will make it easier to disqualify Arab parties and representatives by lowering the bar for the grounds of support for an armed struggle against Israel by an enemy state or terror organization.
In the past, various private bills have been tabled in a similar spirit. Now an updated proposal on the subject has been published by Coalition Chairperson MK Ofir Katz.
Current Situation: Section 7a of the Basic Law: The Knesset defines which parties and individuals may be prevented from standing for the Knesset. The section states that a candidate or a serving Member of Knesset may be disqualified if they negate the existence of Israel as a Jewish and democratic state, incite to racism, or support an armed struggle against Israel by an enemy state or terror organization.
The Elections Committee, whose composition reflects the composition of the outgoing Knesset, has discussed numerous applications submitted before elections over the years to disqualify parties and candidates on the basis of the above criteria. These applications have then been discussed by the Supreme Court through an appeals process, in the case of the disqualification of an electoral list. In the case of the disqualification of a candidate, the law explicitly requires the approval of the Supreme Court. Decisions by the Election Committee not to disqualify candidates have also been the subject of appeals.
Two of the three grounds (incitement to racism and support for an armed struggle against Israel) constitute criminal offences. Accordingly, if a person has incited to racism or supported a terror organization, they are liable to be prosecuted and potentially convicted by the court. In this case, they will be ineligible to stand for the Knesset according to other sections of the Basic Law (the disqualification is not automatic, but depends on the severity of the punishment).
Accordingly, the discussion of disqualification before elections usually involves candidates who have not been prosecuted and convicted of offenses. The discussion centers on an analysis of public statements by candidates, the way these should be interpreted, and a review of their political activities, such as bills they have proposed. The combination of a political committee active just before elections and the political judgment of political statements has led to the disqualification by the Committee of numerous candidates and parties over the years.
In order to moderate the injury caused to the right to vote and to be elected by a political mechanism based on a field trial in which politicians judge their political rivals, the Supreme Court has adopted a restrictive approach to the Committee’s power of disqualification, interpreting the grounds narrowly and raising the required evidential threshold. With a handful of exceptions, the Supreme Court has not permitted the disqualification of candidates and lists.
The Government Proposal: Several proposals have been raised in the past and several are under discussion at present. Among other proposals, the coalition agreements suggest that the section discussing the disqualification of a list or candidate due to incitement to racism be deleted. The reason for this is that in all the instances in the past in which candidates were disqualified by the Supreme Court, these candidates came from the extreme right-wing and engaged in systemic incitement to racism.
In addition, MK Ofir Paz (Likud) proposes a lowering of the evidential threshold for disqualifying a candidate on the grounds of support for an armed struggle against Israel by an enemy state or terror organization. According to his proposal, even a single statement, or a handful of statements, that may be considered to express support for terror will permit disqualification. Similarly, even support for a single individual attacker, as distinct from an enemy state or terror organization, will be sufficient for disqualification.
It is also proposed that if a single electoral list is comprised of several parties, it will be possible to disqualify one party among those in the list.
A further proposal states that, contrary to the current situation, the decision of the Election Committee to disqualify a candidate will be final. It will be possible to appeal the decision, but the explicit requirement for the approval of the Supreme Court will be removed.
These are just some of the examples that illustrate the government’s goal: to change the law in order to make it easier to disqualify Arab candidates and lists.
It must be recalled that these proposals are accompanied by the far-reaching changes being made by the government to the system of government: the Judicial Appointment Committee, the status of legal advisors, and the authority of the Supreme Court. These changes will make it harder for the justice system to moderate the exercising of power. Judges will be less independent and less professional, and their promotion will be assessed according to their rulings.
It is also important to recall that judicial review inherently focuses on the political minority, whose positions are not raised for parliamentary discussion. The prime minister can initiate changes to the system of government that damage Israel’s democratic character. In theory such initiatives justify disqualification on the grounds of the negation of Israel’s existence as a Jewish and democratic state. However, as part of the political majority, the Election Committee will never subject the prime minister’s policy to scrutiny. Conversely, Members of Knesset from the political margins, and particularly Arab Members of Knesset, most of whom are automatically excluded from any coalition, will be forced repeatedly to defend their basic right to be elected. Every statement they make will be inspected and analyzed by their political rivals and interpreted according to the majority narrative.
Meaning of the proposal and the danger to democracy and human rights: A situation where the political majority can easily disqualify the candidacy of lists and candidates from the Arab minority, which constitutes 20 percent of the citizens of Israel, will cause mortal harm to the principle of representation. Such a situation violates not only the right to be elected, but also the right to vote. The procedure will serve as a tool for imposing fear and will have a chilling effect on Arab elected representatives, who will be afraid to express their positions and represent their voters. The majority is liable to interpret any comment about the Israeli occupation or opposition to the occupation as support for an armed struggle against the state, even if the individual does not say anything that is prohibited according to the criminal threshold.
The disqualification of candidates and lists also provides the majority with a tool for suppressing turnout in Arab society by encouraging alienation from the political system. This will create an extreme degree of under-representation.
If the goal of disqualifying Arab parties is achieved, or if the initiatives lead to an even more profound level of under-representation than is already the case, the result will be a serious distortion of the system of government, which is based on the representation in the Knesset of all sections of the population. In the current political reality, this may even perpetuate the rule by the right-wing and prevent any possibility of substantive political change. Elections will be just for the sake of appearance.