Yariv Levin’s Revolution – Closing-Down Sale of Democracy
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.
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.
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