Israel passes first judicial reform law

Today (Israel Summer Time) the Knesset passed the first of several new laws aimed at curbing the heretofore unfettered powers of the Israeli judiciary. Thousands protested in Jerusalem, blocking streets, waving flags – and calling for a general strike.

The Israel judicial reforms

The Knesset passed this first new law 64-0, with 56 absences. Opposition Members, after voicing their protests, walked out of the chamber before the vote began, according to Fox News. ABC News linked to a Knesset press release describing the vote, the new law, and the canards Members shouted. “Shame!” cried one. “Government destruction!” cried another.

The new law, called Amendment 4 to Basic Law, revokes the authority of the courts to rule on the “reasonableness” of a government decision. Heretofore, the courts could even block Cabinet and lower-level appointments as “unreasonable.” The Courts will no longer have such jurisdiction.

Protests broke out even before voting began; police responded with water cannon and physically carrying protesters away.

Opposition leader Yair Lapid loudly lamented the new law, saying “we are no longer a brotherly people.” He also accused Prime Minister Benjamin Netanyahu of weakness. This is likely a wrong impression, since current law does not allow Netanyahu to involve himself in judicial reform. He is, rightly or wrongly, facing trial on corruption charges.

National Security Minister Itamar Ben-Gvir had harsh words for the protesters:

Translation (by Google):

Don’t be told stories about reform. They are protesting because they don’t want Ben Gabir in the government. Because they want to overthrow the government that was democratically elected by the people.

The back-and-forth read almost like a typical back-and-forth among Americans, illustrating the deep divide in Israeli society today.

The press release gave further details on the new law:

In spite of what is stated in this basic law, those holding judicial power by law, including the Supreme Court sitting as the High Court of Justice, shall not hear [a case] nor issue an order against the Government, the Prime Minister or a Government minister, on the reasonableness of their decision. In this section, “decision” means any decision, including on appointments, or a decision to refrain from exercising authority.

Further intentions on judicial reform

Besides the now-abolished reasonableness standard, current law requires all judicial appointments to be unanimous decisions of a panel, half of Knesset members, half of judges. This, say critics inside and outside Israel, amounts to appointment by co-optation. Another proposed law would vest the judicial appointment power in the Knesset alone. Another proposed reform would allow a simple majority of the Knesset to override a Supreme Court decision.

Reuters gave the rationale for these reforms four months ago:

Critics of the Supreme Court, including many in the coalition government, say the bench is left-leaning and elitist and has become too interventionist in the political sphere, while often putting minority rights before national interests.

The protests illustrate a tension between those who want Israel to be a civilizational state, and those who do not. Furthermore, the Israeli judiciary has made itself a left-wing institution precisely by the quasi-co-optation system governing judicial appointments. Last year’s Knesset elections brought this tension to a head; hence the proposed reforms.

An Israel critic, writing at Vox, expressed fear that Israel will become “more religious and hard-line.” She calls the “reasonableness standard” the only possible substitute for the written constitution America has and Israel lacks. But she fails to mention that few if any systems let a court pass judgment on an executive (or, in parliamentary systems, prime-ministerial) appointment.

In the United States, Presidents appoint judges, “by and with the advice and consent of the Senate.” Congress can also remove judges through the impeachment process. Not so in Israel. And in America, the Senate, not the courts, passes judgments on treaties and Presidential appointments.