Israeli judicial reform – Decker, Pex, Levi

What are the changes proposed as part of the judicial reform? The judicial reform offered by the Minister of Justice in 2023 proposes far-reaching changes in the Israeli legal system. These include changing the way judges are appointed, the court’s authority to annul laws and review the decisions of the state’s various authorities, and more. The reform raises many questions, and not everyone understands what its consequences may be. In order to put things in order, attorney Michael Decker, a partner in our firm and an expert in administrative and civil law, will explain the subject in detail in this article.

2023 will be remembered in Israeli history as the year in which a tumultuous public debate took place, one of the most significant the country has ever known, surrounding the judicial reform proposal presented by the Minister of Justice Yariv Levin, a reform that has been nicknamed the “judicial revolution”. The reform, which as of writing these lines has not yet passed in the Knesset and has not yet entered into force, includes a long series of fundamental changes in the Israeli legal system. The discussions surrounding the reform proposal ignited protests and demonstrations in various cities across the country, with the participation of millions of citizens. Along with the high tensions in Israel surrounding the reform, the issue even came up on the public agenda in many other places in the world, including in the United States and countries in the European Union.

In this complex situation, many citizens have only heard of the reform in general terms, and accordingly are wondering what it actually includes, and what might be its possible effects on the citizens and residents of Israel. Although the answers to these questions are complex, since agreements have not yet been reached regarding the proposed reform, and it is difficult to know what it will look like at the end of the road, in this article we will try to answer these fateful questions briefly and in simple terms.

Which changes are expected to take place as part of the reform?

As mentioned, the judicial reform has not yet passed the legislative procedures in full, and therefore it is possible that it will still include changes. In addition, the Minister of Justice stated that the reform will consist of several stages, and so far only the first stage of the reform has been presented. The proposed changes at this stage mainly deal with changing the legal situation regarding the court’s annulment of laws passed by the Knesset, changes in the procedure for appointing judges in Israel (especially Supreme Court justices), changes concerning the appointment of the legal advisors of government ministries, and the cancellation of the “reasonableness” standard. Below we will explain each of these changes in detail:

Annulment of laws – until now, the legal situation in Israel was such that the Supreme Court (and in fact also the lower courts) was able to annul laws if they contradict the fundamental rights established in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. Also, the court has the authority to annul laws in cases where there have been substantial defects in the legislative process, such as not holding required hearings before passing the law. However, this authority is not explicitly regulated by law, and it is based on the court’s own interpretation of the matter. As part of the reform, it is proposed to establish a requirement for a special majority of judges in the Supreme Court as a condition for annulling laws. It is also proposed that the Knesset could overcome the annulment of a law by the court, by re-legislating it for a temporary period of 4 years (after which, it would be necessary to re-legislate the law for it to remain valid).

Appointment of judges – the reform proposes changes in the composition of the committee for the selection of judges, which would include a majority of Knesset members from the coalition and other committee members appointed on behalf of the coalition. In addition, it is proposed to make changes in the way the committee operates, such as holding public hearings for Supreme Court Justice candidates (a procedure that does not exist in Israel as of today, and is more similar to the legal situation in the United States). In addition, it is proposed to make changes regarding the duration of the Supreme Court president’s term. At present, it is customary for the president of the Supreme Court to be the most senior judge. Now, it is proposed that the president be chosen by the committee for the selection of judges, and this person could also be a lawyer or a jurist coming from outside the court. Also, unlike the current situation, where the president serves until the age of their retirement from the court, it is proposed to limit the duration of their term.

Changes regarding legal advisors to the government – in contrast to the legal situation today, where the Attorney General and the legal advisors in the government ministries are chosen from among names gathered by a search committee, and their opinion is binding on the government, the reform proposes that the government and the ministers be the ones who appoint the advisors themselves (as sort of positions of trust) and that their opinion would no longer be binding on the government. In addition, it is proposed that the government would have the possibility of independent legal representation in court.

The “reasonableness” principle – “reasonableness” is a legal principle originating in common law, which we inherited from the British mandate. This principle is not anchored in an explicit and orderly manner in Israeli law. However, it is widely used in the Supreme Court and the administrative courts for the purpose of exercising judicial review of the decisions of the governing institutions (the government, the Knesset and the local authorities) and annulling or interfering with these decisions. In many cases, it is used for the purpose of annulling decisions that harm certain citizens or the public as a whole. The reform proposes the cancelation of considerations of “reasonability” for the purpose of overriding government decisions.

What are the possible consequences of the reform?

Although this is a complex issue, which may include many legal consequences, there is criticism regarding the violation of civil rights that may become possible in the wake of the judicial reform. It is argued that the violation of the court’s law annulment authority and “convenient” political appointments of the legal advisors in the government is expected to make it harder to protect citizens’ basic rights, compared to the current situation, where it is possible to petition the High Court regarding laws that violate human rights. Regarding the appointment of judges, it is argued that the reform may politicize the court. Also, it is important to know that the position of the President of the Supreme Court is not only a symbolic position, but has various implications such as setting rules regarding court hearings, as well as appointing the panels that will hear the cases. The change could cause politicization of the appointment, in light of the fact that the president could potentially be someone who has never served as a judge in the Supreme Court (or even as a judge in general).

Regarding the reasonableness standard, today it is used for the purpose of annulling government decisions that violate citizens’ rights. Abolishing the standard could have fateful consequences in this respect. Although there are people who oppose the use of this standard, arguing that the court does not have clear tools to rule on government decisions, there is a broad consensus that reasonability makes it possible to prevent arbitrariness on the part of government authorities, thus protecting human rights in cases of extremely unreasonable decisions.

For instance, the High Court of Justice recently made use of the reasonableness standard, among other things, for the purpose of annulling a change in criteria for subsidizing day care centers for toddlers, in light of the fact that it was done without transitional provisions and a preparation period for parents (Supreme Court case no. 5782/21). There is a concern that with elimination of the standard, the legal situation regarding the protection of fundamental rights will be shaped according to the nature of the specific government. When it comes to a conservative government, there is concern that government representatives will harm the rights of the secular majority in the country, including the rights of mixed couples (members of different religions, such as Jews and non-Jews), LGBT rights, etc. In these cases, it is unclear to what extent the court will be able to intervene in such harmful decisions, in comparison to the current situation.

What is proposed in the compromise initiative promoted by the President?

Due to the intense public debate on the subject of the judicial reform, the president of Israel decided, in an unprecedented step, to intervene in the matter and attempt to reach a compromise between the coalition and the opposition regarding the reform. The president’s compromise initiative includes proposals to soften the authority to annul laws, but in a much more moderate manner than what is proposed in the judicial reform. It is proposed that the court’s authority to review and annul the Knesset’s laws be explicitly defined in the law. It is also proposed that the composition of the judge selection committee include a balance between representatives of the legal system and representatives of the political system, in order to prevent politicization of the committee.

Regarding the reasonability standard, it is proposed that the law define the cases in which it will be possible to use the reasonability standard for the purpose of judicial review of governmental actions and intervention using the principle. It is important to clarify that this compromise initiative is still under discussion at the President’s House, and it is still impossible to know whether it will succeed as planned. We continue to follow the issue closely, in order to understand “which way the wind is blowing” and what the consequences of these significant steps will be.

Contact an attorney specializing in administrative and civil law

Above we elaborated on the judicial reform and explained the content of the changes proposed in it and their potential consequences. If you have additional questions, or need advice on matters related to the field of administrative law, our office is always available to provide comprehensive legal assistance. To contact an attorney specializing in administrative and civil law from our office, call us.