Judicial Overhaul or Power Play? Inside Israel's Controversial Changes to the Judiciary
Jha Arunima CIPP(E)
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Israel's judiciary is facing an overhaul as two bills were approved by the Knesset, the Israeli parliament, on February 20, 2023. The first bill aims to strip the Supreme Court of Israel's ability to assess the legitimacy or reasonability of legislation as the nation's constitution. Meanwhile, the second bill changes the make-up of a nine-member committee responsible for selecting judges, allowing the government to nominate the justices. The move is designed to give elected officials and government appointees an automatic majority and lessen the power of legal practitioners. The bills have been passed in their first readings in the Knesset. However, the proposed changes have faced a backlash from the public, with tens of thousands of Israelis protesting across the country. The UN also expressed concern that the changes could weaken human rights protections for all. This article takes a closer look at the proposed changes and the events that led up to them.
The government of Israel has complete dominance over the Knesset, with the only checks on unrestrained executive authority being the Court's external check and the Attorney General's and government ministries' legal advisers' binding legal viewpoints. Accordingly, in order to remove these institutions' capacity to act as a check on presidential power, the administration recommended the following extreme changes. The following are the drastic changes that have been suggested and referred to in the legislation:
Altering the structure of the Judicial Selection Committee (JSC) to provide government officials exclusive influence over the selection: The procedure used to choose judges currently has been in use since 1953. According to Basic Law: Judiciary, a Judicial Selection Committee (JSC) made up of nine people—the Minister of Justice and another government minister, the President of the Supreme Court and two additional Supreme Court judges, two Knesset representatives, and two Israeli Bar Association representatives— is responsible for choosing every judge in Israel. The JSC's makeup is meant to achieve a balance between assuring professional nominations and permitting considerable political influence in the selection process because it has control over the selection, advancement, and dismissal of all judges in Israel.
The first bill intends to strip away the Supreme Court's ability to proclaim Israel's Basic Laws invalid as they "serve as the nation's constitution." This authority to assess the legitimacy or "reasonability" of legislation is comparable to the judicial review authority granted to Indian courts. This proposed change would significantly limit the Supreme Court's authority and increase the power of the Knesset.
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The second bill modifies the make-up of a collegium-like "nine-member committee which selects judges," allowing the government to nominate the justices. The purpose of this is to give elected officials and government appointees an "automatic majority" and lessen the power of legal practitioners.
The proposed changes have faced a significant backlash from the public, with tens of thousands of Israelis protesting across the country. The UN expressed concern that the changes could "risk weakening human rights protections for all." However, the Israeli government is determined to push through the proposals, citing the need to curb activist judges who overreach their powers to interfere in politics.
The proposed changes are part of a wider move by the far-right government coalition to overhaul the judiciary. This move has been seen by many as an attempt to weaken the judiciary and escape the corruption trial of former Prime Minister Benjamin Netanyahu. Netanyahu was charged with fraud, breach of trust, and accepting bribes in November 2019, after three years of investigation. In June 2021, Centrist Israeli politician Yair Lapid successfully put together an unusual coalition of liberals, right-wing and Arab parties, removing Netanyahu from power after more than 12 years as prime minister. However, in January 2022, reports circulated in local and international media that the 73-year-old Netanyahu is negotiating a plea bargain to end his corruption trial.