January 23, 2023
To
Members of Knesset (MKs)
Greetings,
Re: Association for Civil Rights in Israel’s Position on Minister Levin’s Plan and MK Rothman’s Proposals for Legislative Amendments Regarding the Judicial System
Justice Minister Yariv Levin recently announced his intention to promote a series of comprehensive and far-reaching changes to the Israeli legal system in Israel. In parallel, the chair of the Constitution, Law and Justice Committee, MK Simcha Rothman, has promoted two proposals on his behalf that concern the same structural changes. Hereinafter we seek to address the challenging far-reaching implications of this complex of changes regarding the legal system in Israel, with respect to mode of governance and human rights.
The proposals constitute a dangerous and hasty regime change that will lead to grave human rights violations
1. Minister Levin and MK Rothman’s proposals to change the judicial system include a series of far-reaching structural changes, starting with overriding Supreme Court rulings with a simple parliamentary majority; a ban on the Supreme Court’s annulment of Basic Laws; the elimination of grounds of reasonableness in court rulings, through revoking the binding nature of the attorney general’s position; appointment of legal advisers as trusted servants; elimination of exclusive representation by the State Attorney’s Office; and concluding (for the time being) with changes in the judicial selection process, so as to turn judges into political appointees.
2. The set of proposals at hand brings significant respective challenges to the fore, which will collectively lead to a deep regime change, entailing a fatal blow to the supreme rule of law, independence of the judicial system, and the very existence of democracy in Israel.
3. All mechanisms of amendment or annulment are essential to restrict the power of the executive authority and the Knesset in its capacity as a constituent and legislative authority, and to prevent the tyranny of the majority. These mechanisms of the separation of powers have been shaped by the Israeli regime for decades.
4. Acceptance of the proposed changes will lead to the transfer of unlimited power to the government, enabling its tyrannical conduct, unbridled human rights violations of minorities in particular, along with cross-sectoral erratic, corrupt, and illegal conduct.
5. The judicial system is not without its challenges and issues. The heart of ACRI’s operations over the past 50 years have involved work in the legal realm. We have thus accrued extensive litigation experience among the various courts, and especially the High Court of Justice. We have firsthand experience reviewing decisions made by legal counsel to the government, the State Attorney’s Office, and of course court rulings and proceedings. These are institutions whose role is to protect citizens’ rights before the government, yet their standard tendency is to lend a listening ear to the public interests that the government seeks to promote. For every ruling that initiators of the plan raise as an indication of excessive intervention on behalf of the legal system, we can offer examples of rulings that indicate insufficient intervention. Dissatisfaction with certain decisions is not cause for an in-depth regime change, and raising them as examples of the plan’s necessity merely heightens a sense of vindictiveness and impracticality.
6. Even if the judicial system is not free of issues, it is a vital peerless institution whose independence and honor must be maintained. This is true for any democratic regime and all the more so for the State of Israel. All aspects of the legal system constitute the most vital and nearly exclusive means of restraining the Israeli government.
7. There is no genuine separation between the Knesset and the government in the parliamentary system in Israel, and the Knesset’s means of oversight are weak and ineffective in relation to the government’s power and near total control over the Knesset.
8. Moreover, Israel lacks a complete constitution. Most of the Basic Laws, which constitute parts of a future constitution, are not protected, and there is no distinction between the Knesset in its capacity as a legislative authority, and the Knesset in its capacity as a constituent authority, which grants the political majority at a given moment great control over the establishment of new Basic Laws and the amendment of existing Basic Laws.
9. The most basic rights for the existence of democracy in the country, have never been explicitly anchored in Basic Laws, such as the right to equality and freedom of expression. These are rights without which there is no democracy. They are anchored in rulings as part of Basic Laws. Neglecting to enshrine these basic rights demonstrates how even the most basic rights must be protected by the courts and through an expansive interpretation of Basic Laws, and that the political system fails to protect them.
10. The mode of governance in Israel lacks the significant checks and balances that exist in other democratic countries – such as a federal structure, regional elections, two
legislatures, or subordination to international human rights treaties and international courts, for example.
11. Furthermore, the increasing involvement of the government and Knesset in the application of sovereignty over a territory subject to ongoing and fixed military occupation, via de facto annexation, entails that the decisions of the executive and legislative authorities regularly impact millions of people under military rule. These people are neither entitled to vote nor to be elected, and the legal system constitutes the sole barrier between them and the government.
12. We thus entirely reject the manipulative attempt to adopt isolated aspects of other modes of democratic governance, while disregarding the Israeli system’s nonconventional aspects, and its creation of checks and balances. Each administrative system stands alone and retains its own internal logic.
13. Prior to relating to each of the proposed amendments, we will address them in their entirety: passing the entire set of proposals entails that the government will retain the capacity to easily violate human rights unrestrained. It will be able to enshrine grave human rights violations in Basic Laws that will not be subject to judicial review whatsoever. Alternatively, it will be able to easily re-enact laws that the High Court of Justice has deemed unconstitutional due to their violation of basic rights. What’s more, political parties will be granted free reign to make decisions illegally or arbitrarily, and the judicial system will gradually lose its independence and professionalism, and will be unable to fulfill its democratic mission of protecting citizens from the government.
14. As the oldest and largest human rights organization in Israel, we have seen through many transformations and changes in Israeli society. We have promoted human rights with governments on all sides of the political fence, and defended the rights of citizens across the entire political spectrum. This entails genuine cause for alarm for all human rights seekers. It is not a matter of left and right-wing. Similar procedures that took place in other democratic countries prove: first restrictions on the use of force are removed, and immediately thereafter unbridled force is applied to deeply harm individual rights and entrench the government. The damage takes many years to repair.
MK Simcha Rothman’s proposal for various amendments to the Basic Law: The Judiciary prohibits judicial review regarding the validity of a Basic Law
15. MK Rothman proposes to determine that those who have judicial authority in accordance with the law, including the Supreme Court, will not be required, directly or indirectly, to question the validity of a Basic Law. We vehemently oppose this dangerous proposal.
16. The question of the jurisdiction of the constitution and its amendments, is respectable upon enshrining a complete constitution, the amendment of which requires broad consensus. Israel lacks such a constitution; there are Basic Laws that constitute the chapters of a potential future constitution. Legislation of new Basic Laws is carried out through the same procedure for standard legislation, almost always by a simple majority or at most by a majority of 61 MKs. Reality indicates that the Knesset does not hesitate to enact Basic Laws without broad consensus, but rather does so on the basis of the coalition majority, making numerous amendments to Basic Laws frequently, thus changing the rules of the regime’s game to benefit the parliamentary majority and its needs, applicable immediately.
17. Furthermore, while Basic Laws are also expected to include core values, including human rights treaties, alongside principles of governance, reality indicates that the Knesset not only neglects to legally enshrine basic rights (such as equality and freedom of expression), but also does not hesitate to use Basic Laws to violate rights. This is the case despite the fact that violation of rights should be enshrined in standard law, since it reflects the withdrawal of recognized rights, not their revocation. Anchoring the violation of rights in Basic Laws is an attempt to perpetuate their violation for other governments as well, which do not seek to do so. The most blatant example is Basic Law: Israel as the Nation-State of the Jewish People, which explicitly enshrines infringement of the Arab minority’s right to equality. Another example is MK Rothman’s bill for Basic Law: Immigration, which seeks to deny immigrants the right to access the courts, among other basic rights.
18. Rather than enshrining democratic principles for the constituent authority to exercise, which would ensure a special and suitably formal procedure for constitutional amendment, along with promotion of the constitutional project via broad consensus, we are witnessing the opposite procedure. Namely, misuse of the constituent authority and uninhibited exercise of authority for the narrow political needs of those currently at the helm of governance. In such a reality, and until a complete, consensual, fortified constitution is drawn up, judicial review is extremely vital, and even essential to anchor the authority to intervene in Basic Laws and not leave the development of such doctrines to the court.
19. Thus far, the court has refrained from annulling a Basic Law (the question of the unconstitutional constitutional amendment). Yet it has deemed this possible with the existence of certain extreme conditions that would require its intervention, namely upon misuse of the Knesset’s constituent authority, or in the case of an unconstitutional constitutional amendment due to denial of the democratic regime’s basic principles or the core of its nature as a Jewish state.
20. Furthermore, the High Court of Justice is even required to discuss questions of procedure and the validity of a Basic Law or an amendment to a Basic Law, when a dispute exists on the matter. For example – whether the procedure denied MKs their right of participation, whether the Basic Law was passed by the legally stipulated majority, and whether a safeguard measure applies to a particular amendment. These are questions that may solely be resolved by the court, in the absence of another consensual evaluation mechanism.
21. Last, discussion of Basic Laws’ validity is even essential to relieve doubts on the interpretation of a Basic Law, which may solely be addressed through a discussion on its validity. For example, upon the existence of several means of legal interpretation or contradiction between two Basic Laws. The legal discussion may clarify the correct interpretation, as was done regarding the matter of the Basic Law: Israel as the Nation-State of the Jewish People, for example. In that case, the attorney general proposed the adoption of a certain interpretation of some sections of the law, which led the court to reach the conclusion that it is possible to reconcile Basic Law: Israel as the Nation-State of the Jewish People, with Basic Law: Human Dignity and Liberty.
22. The proposed restriction is thus invalid and must be rejected. Until a complete and solid constitution is drawn up, in which arrangements for judicial review will also be discussed, the constituent authority must not be left with unbridled authority that is not subject to judicial review, and the right of access to the courts should not be denied regarding the matter. Should the proposal be accepted, there is genuine concern regarding the tyranny of the majority, since a political majority at any given moment will be able to harm basic rights and political minorities, solely in accordance with its worldview. In the absence of authority to examine the violation of human and minority rights, victims will remain defenseless, at the mercy of the political majority.
23. Furthermore, this poses a genuine risk to constitutional principles established and anchored in Israeli law. The proposed arrangement will create a situation that enables the majority at the helm of governance to change the rules of the political game in its favor, even perpetuating its rule through fundamental legal amendments with no judicial review whatsoever.
Judicial Review of Laws and the Override Clause
24. MK Rothman proposes granting the Supreme Court the authority to conduct judicial review of laws and annul them should they contradict a provision enshrined in a Basic Law. Yet the proposal includes a draconian comprehensive series of restrictions and conditions that strip the authority of content, turning it into a dead letter. Should the proposal be accepted, the Knesset may pass laws that violate constitutional human rights,
even preventing prior judicial review of their validity, leaving citizens without any aid whatsoever.
25. Per the proposal, the Supreme Court alone will be able to determine whether a law is unconstitutional, solely with the unanimous consent of all 15 Supreme Court judges and only in the event that the law expressly contradicts a Basic Law provision. Furthermore, the Supreme Court will be unable to invalidate a law with an override clause that was accepted by a mere majority of 61 MKs, until a year has passed since the end of the Knesset term during which it was passed and without having ratified the override clause (that is, the law may be in effect for many years before it may even be discussed).
26. The proposal implies that should a legislator violate a constitutional right, the unanimous consent of 15 judges will be required to repeal it, and then the Knesset may re-legislate it on the basis of the override clause, or choose to preemptively include the override clause in a law that violates constitutional rights, thus preventing judicial review from the outset. Should the government accept this proposal, there will be no genuine means of restricting human rights violations among the standard coalition majority.
27. We will begin by noting that formal enshrinement of the Supreme Court’s authority to annul laws is important, although we have never considered it controversial, and it clearly emerges from the Basic Laws of 1992. However, as an ancillary authority, a series of conditions that effectively exclude the possibility of legislative interference, is nothing short of deception.
28. The demand for a panel of 15 judges is unconstitutional, as it will lead to a violation of the right to access the courts in any case wherein a judge is on vacation, sick, on sabbatical, or otherwise hindered from hearing a case, such that it would be appropriate to include no more than nine or 11 judges on the panel.
29. We strongly oppose proposals for the repeal of a law to solely be conducted unanimously or by a significant majority. Fateful court decisions have always been made via majority opinion, and there is no justification for the accommodation of a law that the majority of judges deem unconstitutional, solely due to minority opinion. While examples exist of the rejection of laws by a supermajority, a simple majority is required in most democratic countries wherein most of them require a slightly larger majority than a simple majority, and El Salvador is the sole country that requires a unanimous decision.
30. Beyond the aforementioned, we oppose use of the override clause by any majority. Re-enactment of a law that has been deemed unconstitutional is an incomparably grave act. It should be noted that the Knesset is currently authorized to re-enact laws that have been invalidated upon incorporating suitable changes that adapt the law to the requirement of
proportionality, or to enact a law that fulfills the desired purpose through another means that has not been invalidated. Often a law or section that has been invalidated is re-enacted in a manner that realizes the court’s rationale for invalidating the law. That is, even in the current situation, the court ruling is not an end in itself, and the Knesset may re-enact a law that realizes the purpose that a legislator seeks to promote, yet in a manner that does not lead to an unconstitutional human rights violation.
31. Anchoring the Knesset’s capacity to override an explicit Supreme Court ruling that deems a law unconstitutional, will lead to the tyranny of the majority. The political majority will use its numerical advantage to harm minority rights.
Eliminate Grounds of Reasonableness
32. The proposals include elimination of the courts’ capacity to determine that an administrative decision was made unreasonably, thus deeming it invalid. Some of the proposals restrict elimination of the grounds of reasonableness to elected officials’ decisions. The implications of this proposal entail grave harm to citizens for whom grounds of reasonableness may be their last means of protection before a government that exercises its power arbitrarily and discriminately.
33. Contrary to the claims posed by ongoing discourse on the topic, grounds of reasonableness have not undergone substantial changes over the years. On the contrary, in recent years grounds of reasonableness have become less central amid legal discourse, due to the development of the principle of proportionality, through which most violations of individual rights are examined. In parallel, grounds of reasonableness is of central importance in the oversight of decisions that harm important public interests, such as the environment; planning and construction; immigration policy, quality of governance, and rule of law. Grounds of reasonableness enables oversight of decisions made by the State Attorney’s office, for example, regarding prosecution or lack thereof, or the implausibility of exercising enforcement powers.
34. Public discourse on grounds of reasonableness is rife with distortion. Supporters of the proposed changes claim that grounds of reasonableness grant the court unbridled authority to interfere in the work of the government. This is a false claim. In its rulings, the court emphasizes that it is not its role to replace the authorities’ discretion, and that it does not intervene in their decision making. The court solely intervenes should the decision be beyond the scope of reason, and the court reemphasizes that this range is extremely broad. Thus, the burden placed on petitioners is exceptionally weighty. The decision is solely invalidated when it is one that no public official acting within reason would have reached. As a body that engages in litigation, we do not note a significant change in this matter.
35. Furthermore, the central criticism regarding grounds of reasonableness currently focuses on examining the considerations faced by the decision maker and the weight they are granted. Should the decision maker indicate that they have properly considered the requisite considerations, the decision will not be invalidated. It will solely be invalidated should it appear that the decision was made arbitrarily or noted that the governing authority disregarded considerations of considerable importance, and even then, solely under exceptional circumstances.
36. Use of grounds of reasonableness often leads the governmental authority itself to re-examine its decision and come to a more balanced one. A considerable number of petitions are effectively deleted after a decision has been changed, with no need for judicial intervention. Elimination of grounds of reasonableness will also compromise authorities’ capacity to re-examine wrong or harmful decisions made due to the their blind spots, and even inattentiveness to relevant considerations.
37. Thus, the proposal’s significance entails enabling policymakers and government officials to make arbitrary decisions, without granting weight to essential considerations, following which citizens will be unable to go to court to try to change decisions. This will result in the violation of human rights, especially the rights to equality, fair proceedings, and access to the courts.
Change in the Judicial Selection Committee’s Composition
38. Among the proposals, is a proposition to change the composition of the Judicial Selection Committee so that the government will retain control over judicial appointment. This would in fact entail a deep regime change in the means through which judges are appointed – from a method in which professional considerations are granted considerable weight, to a means through which weight is primarily place on political considerations; from a method in which judicial appointment to the Supreme Court requires broad agreements between politicians, judges, and lawyers, to a system in which the majority at the helm of power at the right moment will dictate the identity of Supreme Court justices.
39. We vehemently oppose this radical change that would result in disaster.
40. First, contrary to the prevailing claims in discourse, the existing system certainly permits the majority to express its power with regard to judicial selection, as it is not possible to appoint Supreme Court justices without the consent of at least some coalition representatives. This entails that over time, representatives of the governing coalition appoint judges of their choice to the lower courts (which are the reserves for future
appointments to the Supreme Court) and the Supreme Court. It was for good reason that former Minister of Justice Ayelet Shaked was proud that as chair of the Judicial Selection Committee, she succeeded in promoting diversity among the Supreme Court, also in accordance with the existing system.
41. Second, judges’ positions regarding judicial appointment are of the utmost importance, since judges are in the best position to assess a candidate’s professional qualifications, as well as various courts’ needs, for example, with regard to requisite expertise.
42. Third, and perhaps most important, by and large politicians take into account narrow political considerations, and should the proposal be accepted, the procedure for judicial appointment will undergo in-depth politicization with grave consequences for the judicial system’s independence. This implies that politicians will appoint judges in accordance with their personal ties to a party and identification with a political agenda, rather than their qualifications; and that judges who have already been appointed and seek to progress in the judicial system, will be hesitant to rule in accordance with the law on issues that are unpopular among the government, and reluctant to rule against the government even when it violates the law. A reality wherein each standard interim injunction issued by a judge to stop a home demolition so that judicial review may be conducted, leads to extreme criticism that presents their actions as harmful to governance at best, or supportive of terrorism at worst, makes clear that each and every judicial decision will go hand in hand with personal attacks. Such conduct will prevent judges from maintaining professional and impartial conduct, and intimidate them from upholding the law.
43. Total politicization will grow further entrenched upon changing the seniority system for appointing the Supreme Court president, as even Supreme Court justices who seek to be appointed president will fear making legal decisions that upset the political majority. Should the proposal to hold a public hearing in the Knesset be accepted, it may turn into a court martial and confrontation with the judges.
44. We, too, share the demand for more transparency among the Judicial Selection Committee, along with more adequate representation of the variety of communities that make up our society. A prior decision had already been made in agreement to a hearing of the Judicial Selection Committee. MK Rothman and Minister Levin’s proposals are not the appropriate means of promoting representation or transparency, their harm is enormous, and they will compromise public trust in the courts.
MK Rothman’s Basic Law Bill: The Government (Amendment – Government Authorities Regarding Legal Matters)
Change in the Attorney General’s Status
45. The proposals seek to establish that the attorney general no longer serve as the authorized legal interpreter for the government, and that the government no longer be bound to their opinion. Additionally, the proposal seeks to establish that representatives of the attorney general will not be the sole government representatives in the courts, but rather the government and/or the ministers will be permitted to take on private legal representation routinely. Last, the proposals seek to permit ministers to appoint legal advisers as trusted servants. We oppose this dramatic change, not only regarding the attorney general’s status, but also to legal advisors serving as gatekeepers of government ministries.
46. In the Israeli system of governance, where enormous power is concentrated in the hands of the executive authority, the role of the attorney general who is selected to point out legal limitations by virtue of their professional skills, is essential.
47. ACRI has many years of experience in contending with representatives of the attorney general and State Attorney’s office, including in cases where a policy that severely harms individual rights is on the agenda. Cases in which the attorney general refused to defend the government’s position and joined ours are isolated, and in many more instances an attempt was made to mitigate harm while fulfilling the purpose that the government sought to advance. Once the issue reaches the State Attorney’s office for deliberation, in most cases legal advisors skillfully defend the government’s decisions.
48. Furthermore, as those who regularly stand on the other side of the divide before representatives of the attorney general and State Attorney’s office, often in criticism of their position, we perceive the existence of the institution of legal counsel as an independent authorized legal interpreter, to be of great importance.
49. It is important to note that among thousands of decisions made by government authorities, a mere handful will reach judicial review. Many decisions are not publicly known whatsoever, or lack people to oppose them in judicial courts. Legal interpretation will thus not be decided in court. In this respect, the attorney general is an essential systemic gatekeeper, who protects the government from slipping into the realm of illegality, maintaining the principles of proportionality and grounds of reasonableness in decision making, as well as the rule of law, and prevention of corruption.
50. Even in cases where the government infringes on individual rights, the attorney general often constitutes a body that checks and balances the ministry’s political and professional realms. The natural tendency of anybody is to solely perceive the purpose for which it exists. Amid the coronavirus crisis, the Ministry of Health did not wish to take any risks in combatting the pandemic, and thus sought to implement draconian and undemocratic measures. The Minister of Health was solely assessed in accordance with his success at that time. The attorney general also reflects other considerations of which the minister is not always aware, such as preserving citizens’ privacy or freedom, playing an essential role in mitigating harm to citizens.
51. The danger in turning the attorney general into a trusted servant is that a politician may thus appoint a representative advisor, perpetually aware that their ongoing tenure is contingent on the approval of the politician’s actions, even if they are illegal or disproportionate. The advisor will not have the freedom to state their professional position as it stands, for fear of losing their position. Biased and unreliable legal counsel will gravely harm the work of the government and its citizenry, and is liable to lead to increased legal proceedings, and thus indirectly – to unwanted jurisdiction.
In view of the above, we believe that MKs should reject Minister Levin’s plan and MK Rothman’s proposals.
We believe that the proposed amendment is unconstitutional, and its severity cannot be overstated. If accepted, it will deal a fatal blow to democracy and human rights in Israel.
Sincerely,
Dan Yakir Debbie Gild-Hayo Gil Gan-Mor
Chief Legal Counsel Director of Policy Advocacy Director of the Social & CivilRights Units