Israel's Proposed Judicial Reforms and the Israeli Public's Response (Winter-Spring 2023)
Background
On December 29, 2022, a new government was sworn in in Israel, supported by a coalition of 64 out of the Knesset’s 120 members. This new government is pursuing a series of significant reforms that aim to alter the relationship between Israel’s parliament and its judicial system.
In mid-February, significant legislative steps were taken on two elements of the proposed reforms:
- Changing the makeup of the committee that appoints judges so that the coalition/government will have an automatic majority on that committee.
- Preventing moves that could allow judicial review by the Supreme Court of Basic Laws (Israel’s quasi-constitution).
For a clear and detailed explanation of these two changes, see here.
On February 19th, these two proposals passed a First Reading in the Knesset. In the ensuing weeks, proponents and opponents of the proposed reforms have been vocal in their positions, with tens of thousands of Israelis taking to the streets in protest and still others counter-protesting.
What reforms are being proposed?
You can read a translation of the full text of Justice Minister Levin's proposed changes here. To summarize, though, as explained by Jewish Unpacked, there are four main components to the proposed reforms:
1. Override clause:
The Knesset would be able to override Supreme Court decisions with a simple majority of 61 votes out of the 120-seat Knesset.
Currently, the Supreme Court can strike down any law it finds to be unconstitutional. With this change, the Knesset could overrule that decision and pass the law with the smallest majority.
2. Test of reasonability:
The Supreme Court would no longer be able to judge Knesset legislation, appointments or other government decisions on the grounds of “reasonability.”
3. Appointing judges:
The reforms would also change how Supreme Court justices are selected and give the ruling coalition effective control of appointing them.
Currently, judges are chosen by a committee of nine members: three Supreme Court judges (including the Supreme Court president), two representatives of the Israel Bar Association, and four members who are elected representatives (two ministers and two Knesset members).
Under the reforms, the two representatives from the Israel Bar Association would be replaced by two “public representatives” chosen by the justice minister. This would give the sitting government a majority of the votes for selecting judges.
4. Legal advisers:
The plan also includes changing the law so that government ministers would be able to appoint their own legal advisers, which is not in their authority today. The legal advisers would also lose the ability to make binding decisions, and would only be able to issue advice.
Backgrounder Videos from the Israel Democracy Institute
What are the two sides in this debate?
The two sides in the debate over the proposed judicial reforms can broadly be sorted into "Pro-Reform" and "Anti-Reform" camps. However, it is important to recognize that much of the Israeli public is in favor of reforming the judicial system in some sense, so the use of "pro-" and "anti-" in this context should be seen as referring exclusively to the specific reforms proposed in this session of Knesset by MK Levin.
The Coalition (Pro-Reform) Side:
The coalition and its supporters have argued that the Israeli Supreme Court has long been dominated by the predominately Ashkenazi and secular segment of Israeli society, excluding Mizrachi (Jews from Arab lands) and Orthodox Jews. About forty-five years ago, in 1977, Israel’s perennial opposition figure, Menachem Begin, and his new Likud party won the Knesset elections by a landslide. The Likud became a dominant force in Israeli politics, and Begin was elected Prime Minister, largely by tapping into the sense of historical exclusion in government and state institutions of the Mizrachi and Orthodox segments of the population. In the forty-five years since the “mahapach” (upheaval), as Begin’s election was referred to, the Likud party and its partners have been the dominant force in Israeli politics. Many pieces of legislation that they have proposed and passed in the Knesset, however, have ultimately been discarded by the Israeli Supreme Court for failing to meet their standard of “reasonableness”. The coalition and its supporters see the Supreme Court as currently constructed as a remnant of the period when the founding Ashkenazi elite dominated state institutions and promoted their vision of the state to the exclusion of all others.
What Matters Now to MK Simcha Rothman: 'The people should appoint the judges'
This podcast’s guest, Member of Knesset Simcha Rothman, is one of the most important players in that debate, a central architect of the effort to reform Israel’s judiciary. In conversation with Mosaic’s editor, Jonathan Silver, he explains how Israel’s judiciary got stronger over time, why so many have sought to change it in recent years, and what changes he hopes to put into law.
Reforming Israel’s Supreme Court promotes democracy
In this article, Jerome Marcus, a fellow at the Kohelet Institute which drafted much of the language in the legislative bills, explains a rationale for these reforms using American jurisprudence as a guide.
In this essay, author Evelyn Gordon gives background and history to the movement supporting judicial reform in Israel.
Israel is divided over judicial reform, can Tikvah help cool it down? - opinion
In this op-ed piece, Chairman Elliot Abrams and CEO Eric Cohen of the Tikvah Fund, an American Jewish think-tank which has long served as a forum and springboard for conservative Jewish thinkers in America and abroad, explores what role diaspora Jewish organizations can and should play in Israeli debates such as the Judicial Reform debate.
Piers Morgan's FULL Interview With Israeli Prime Minister
In this interview, Prime Minister Netanyahu explains his belief in these reforms as being overdue efforts to enhance democracy as a result of the ossification of the Israeli Supreme Court.
The Anti-Reform side
Unlike the U.S. and most other countries, Israel does not have a constitution. It rather has a quasi-constitutional set of “Basic Laws” (https://m.knesset.gov.il/en/activity/pages/basiclaws.aspx) that delineate the roles of different institutions within the state. Many supporters of the court see it as a critical bulwark maintaining the vision of the State of Israel as outlined in its Declaration of Independence (https://m.knesset.gov.il/en/about/pages/declaration.aspx), including equality of rights for all. Because the system of Israeli elections ensures that the Prime Minister has the support of the majority of the Knesset, the court often functions as the only barrier from a “tyranny of the majority” in which, in theory, a coalition made up of 50.1% of the population can impose their will on the other 49.9%. They also, based on their standard of “reasonableness”, have frequently stepped in to block legislation that critics have said would violate international law or infringe on the rights of minority groups.
[PODCAST] The Proposed Legislative Reform - Implications for Israel's National Security
In this podcast, Col. Adv. Pnina Sharvit Baruch explains the relationship between the judiciary and national security and the implications of the currently proposed reforms on Israel’s national security.
Judicial reform: What does the elimination of derived rights mean for Israelis? - explainer
In this article, Dr. Guy Lurie, a Research Fellow at the Israel Democracy Institute, explains the role of the Supreme Court in upholding “derivative rights” that aren’t directly guaranteed through Israel’s basic laws, including rights to equality and to freedom of speech.
The Israeli Judicial System Must Be Preserved
In this paper, the former Vice President of the Israeli Supreme Court, Elyakim Rubenstein, argues that a weakening of the Supreme Court would mean a weakening of the State of Israel.
The Proposed “Reform” of the Judicial System Poses Risk to the Israeli Economy
This article, by two leading Israeli academics (Prof. Jacob Frenkel, the Chairman of JP Morgan International and Prof. Karnit Flug, Former Governor of the Bank of Israel), explains the role of a stable judiciary in economic growth, as well as the potential ramifications of a judicial overhaul on the Israeli economy.
American Jews, You Have to Choose Sides on Israel
In this article, longtime New York Times Opinion columnist Thomas Friedman argues that this moment calls for a paradigm shift in which American Jews should begin speaking out publicly regarding their opposition to particular policies of the Israeli government
What is the middle ground in the debate?
Israel’s President Isaac Herzog has been working to reach an agreement between the two sides, and has offered a compromise proposal as a basis for negotiations. Both sides have expressed a willingness to engage in dialog, but have also voiced reservations (see details here, and background on possible compromises here).
This whitepaper, written by Professor Netta Barak-Corren (Faculty of Law and the Center for the Study of Rationality, Hebrew University of Jerusalem), also provides a balanced (albeit quite long) analysis of the positions held by both sides, as well as a roadmap to a middle ground. Professor Barak-Corren also gave a recent presentation on the subject to the University of Pennsylvania Law School, which can be viewed below.
ARTICLES IN SUPPORT OF COMPROMISE
What's the deal with the protests?
On February 19, in response to the proposals’ First Reading, outside the Knesset, an estimated 90,000 people protested against the reforms, calling for “Israel’s democracy to be saved.” In one of the largest demonstrations seen in the Jewish state for many years, streets surrounding Israel’s parliament were closed to traffic and filled with people waving Israeli flags, as far as the eye could see. See details here and photos from the demonstration here.
Over the ensuing month-plus since the protests began, they have continued regularly and have even grown, escalating into a full-blown general strike on March 27. Learn more about the general strike here and here.
Not all of the protests have been held in opposition to the reforms either. Pro-reform activists have held demonstrations across Israel as well, with the largest taking place on March 27 and 28 in response to PM Netanyahu's announcement that reforms would be postponed until after the Knesset's Passover break.
How are Jewish Federations responding?
The Jewish Federations of North America sent a letter to Prime Minister Benjamin Netanyahu and Opposition Leader Yair Lapid (original Hebrew version here) expressing our concerns over aspects of the reforms and urging the two sides to negotiate a compromise, based on the suggestions of President Isaac Herzog. News of our letter was widely reported in the Israeli press, and shortly after the letter was delivered, Prime Minister Netanyahu openly called for dialogue (see here) and Opposition Leader Lapid responded in a letter to Federations, stating that he agreed with our principles.
A senior Federations fly-in delegation met with Israel's most senior leaders, including President Isaac Herzog and Opposition Leader Yair Lapid, and ministers and members of Knesset who are at the center of the negotiations and debates. At the conclusion of the fly-in, we issued a joint statement on behalf of all the participants. Just as the fly-in was closing, President Herzog addressed the nation. He said that he recognized the desires of many for changes to the judicial system in Israel, and offered new proposals that he said would make needed changes without including provisions in the current legislation that many believe are destructive of democratic norms. (A summary of the proposal is here and the full proposal is here.)
In addition to signing on to Jewish Federations of North America's statements, here in Greater New Haven we co-hosted a panel event Israeli Perspectives on Preserving Democracy, which featured local Israeli academics and Israeli Yale alumni/ae and which was co-hosted by Temple Emanuel of Greater New Haven. You can watch a recording of the event, which was broadcast live on March 26 via Zoom, embedded below.
This page is current as of March 28, 2023 at 5:00 PM. Check back often for more information as this situation unfolds. We will continue to update this page with more information and articles, and will create additional programs and opportunities for learning and engagement throughout Israel's upcoming 75th anniversary and beyond.
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READY TO TAKE ACTION?
Contact Joshua Pernick, Rabbi-in-Residence and JCRC Director,
Jewish Federation of Greater New Haven
(203) 387-2424 x236 | jpernick@jewishnewhaven.org
JCRC Co-Chairs: Jay Sokolow & Ina Silverman
