‘Why do we need judicial reform?’ An architect behind the proposal explains

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Professor Moshe Koppel, one of the architects of the Netanyahu government’s judicial reform program, spoke to JNS last week about why the reform is needed and what it’s really about.

“Contrary to the claims of its opponents, who say that it will strip Israel of its checks and balances, judicial reform will restore the checks and balances that have been stripped away by a court system that has arrogated powers beyond its purview,” said Koppel, chairman of the Kohelet Policy Forum, a Jerusalem-based think tank that seeks to “broaden individual liberty and free-market principles in Israel.”

“The problem is that all the checks and balances that exist in other [Western, democratic] countries do not exist in Israel,” he said. “The [Supreme] Court can do whatever it wants…. Judicial reform is trying to rein in the court.”

Secondly, the Supreme Court turned the attorney general into “the long arm of the court within the government,” so now the attorney general can “push the government around on its behalf,” Koppel said.

The Knesset in Jerusalem, Feb. 22, 2023. Photo by Yonatan Sindel/Flash90

The judicial reform has five parts, he said. The first addresses the issue of the attorney general. The reform clarifies that the attorney general’s role is that of an adviser. “The attorney general is not the boss of the government,” Koppel said.

In unveiling the “first stage” of the reform plan on Jan. 4, Justice Minister Yariv Levin said that legal advisers are “advisers, not deciders, who represent the government and not their personal positions.” He called for an end to the “subjugation of the government to an unelected rank.”

Said Koppel, “The government should hear the advice of its lawyer and then decide whether it wants to take that advice, or doesn’t want to take that advice, just like anybody else in the world who has a lawyer.”

There have been instances where the attorney general has refused to represent the government in a case, while refusing to allow the government the right to hire private counsel, leaving the government without legal representation to defend itself in court. The reform will allow the government to hire its own counsel in such an event, Koppel said.

The second part of the reform concerns the way judges are appointed. Appointment of Supreme Court justices currently requires the approval of seven out of nine members of the Judicial Selection Committee. As three are justices they effectively have veto power. “It causes the court to be too homogeneous,” Koppel said. The reform will change the composition of the panel. There are discussions about how to do it, “but the short version is you want the judges to have less influence over the appointment of new judges.”

The last three parts of the reform address ways in which judges can weigh in on legislative and governmental decisions.

One addresses the judicial pretext of “reasonability,” whereby judges overturn laws and administrative decisions based on whether they consider them “reasonable” or not. The pretext is vague enough that opponents of reform (at least in its current form) agree that it shouldn’t be allowed.

On Feb. 12, Israeli President Isaac Herzog said in an address to the nation, “An unrestricted use of the pretext of reasonableness could become the basis for a disproportionate entry of the judicial authority into the exclusive territory designated for the executive and legislative branches.”

Koppel said the “reasonability” pretext was first used in a court case in 1981 by then-Supreme Court Justice Aharon Barak. Barak, who went on to become president of the court from 1995 to 2006, is widely considered by Israel’s right-wing as responsible for the “judicial revolution” that the current government seeks to correct.

Quasi-constitutional status

The fourth part of the reform would ensure that the Supreme Court can’t invalidate basic laws, which are considered to have a quasi-constitutional status in Israel. The first bill of the judicial reform package to go up for a vote in the Knesset plenum addressed this problem.

Those in favour of judicial reform argue that the court should have no right to strike down basic laws given that the court claims to derive its authority from basic laws, which the judges say are equivalent to a constitution (and have done so ever since Barak declared it to be the case in 1995). In effect, the court is claiming the right to strike down the constitution.

The fifth and final part of reform addresses the issue of how the Supreme Court can strike down laws. The reform would regulate the court’s ability to do so, requiring that all 15 Supreme Court justices sit on a case and that legislation be struck down by a special majority. Before, as few as three justices, selected by the court president, could strike down a law, Koppel said.

Some reform advocates view granting the Supreme Court the right to strike down laws as a concession. They argue that the court has no right to overturn legislation.

Koppel said that the reform package also includes an override clause that gives the Knesset a second chance should the court strike down a law. The Knesset could override court decisions and re-legislate laws struck down by the court, Koppel said.

The override clause is the “most controversial part” of the reform. “It is, in fact, an unusual thing, and it is the thing in this law that frightens people the most,” he said.

“You can imagine the government, the Knesset, passing some crazy law, and then the judges would say, ‘That really is crazy.’ Sometimes the judges are right [though] it’s unusual,” he said. “And then they strike something down and the Knesset can come back with 61 [votes] and…override it and it scares people.”

Koppel said some aspect of the override might be removed or tempered, in negotiations (so far, the opposition has refused to engage in negotiations).

In any case, “at least four and a half out of five parts of this reform are no-brainers,” he said.