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What are the judicial reforms proposed by Yariv Levin? – explainer

Legislators have no recourse to respond to the Supreme Court’s nullification of legislation, and Levin is proposing several ways for the Knesset to do just that.

By Lauren Marcus, World Israel News

Justice Minister Yariv Levin’s proposed reforms to Israel’s judicial system have sparked major backlash from left-wing politicians and activists.

Opponents of the overhaul have framed the reforms as a threat to democracy, warning that Israel will be transformed into a dictatorship should the changes come to fruition.

Let’s break down the reforms to the judicial system submitted by Levin and Religious Zionism MK Simcha Rothman, and how their vision for the Supreme Court differs from the current reality.

Checks and balances, or unchecked power?

The Supreme Court currently has the power to unilaterally strike down laws passed by the Knesset or by executive decision, if it determines that legislation violates Israel’s quasi-constitutional Basic Laws.

The Basic Laws feature vague wording, which essentially say that laws cannot violate or restrict Israeli citizens’ human rights and basic freedoms. These guidelines have been interpreted quite liberally by the Supreme Court.

For example, in 2020, the Supreme Court struck down a law passed by the Knesset that forbade hospital visitors from bringing leavened bread products (chametz) into medical centers during the Passover holiday.

The Supreme Court’s voiding of the law sparked outrage among many religious lawmakers, who complained that the court had overstepped its bounds by interfering with a law that does not violate human rights.

As of now, legislators have no recourse to respond to the Supreme Court’s nullification of legislation, and Levin is proposing several ways for the Knesset to do just that.

First, Levin is pushing for an override clause, which would enable legislators to reverse a Supreme Court veto via a simple majority of 61 Knesset votes. A similar override policy exists in Canada and Finland.

Additionally, Levin wants to codify, for the first time, the Supreme Court’s powers regarding judicial review. For legislation that the Supreme Court deems problematic, there must be a majority of 80 percent of the judges in order to nullify it, and such occurrences should happen only under “exceptional” circumstances.

Who decides what’s ‘unreasonable’?

On the same theme of strictly defining in which scenarios the Supreme Court is permitted to intervene, Levin is proposing the removal of the so-called “unreasonableness” standard.

Under the current system, the Supreme Court is able to review and nullify administrative decisions made by the government, including the appointment of ministers, if said decisions appear to be “unreasonable.”

However, what exactly constitutes “unreasonable” is very much open to interpretation. It’s also important to note that this unreasonableness standard has no parallel in any other judicial system in the world.

The unreasonableness standard was cited as one of the justifications by the Supreme Court in its recent decision to disqualify Shas party head Aryeh Deri from serving as a minister, due to his criminal convictions.

Even former Supreme Court judge Moshe Landau has acknowledged that the reasonableness standard is inherently flawed.

“The judge is not the teacher of the generation and is not a philosopher-king. His task is much more modest: to be a faithful interpreter of the law, of the public’s will as expressed by the Knesset, as representative of the public,” Landau told Haaretz earlier this month.

“Therefore, I believe that the judge’s wisdom requires him to be cautious, sensitive, with broad discretion and without hubris.”

Advice that is binding

Another aspect of the legal system unique to Israel is the role of the attorney-general. Under the current system, decisions made by the attorney-general – an unelected official – are binding, and the Israeli government is required to abide by them.

If the reforms pass, the government will be able to either accept or reject the attorney-general’s recommendations, and will no longer be mandated to follow them.

A shake-up to the selection committee for new Supreme Court justices is also part of the proposed reforms. Currently, justices are hand-picked by sitting justices, ministers, representatives from the Israeli Bar Association and MKs, via secret ballot in a process that is not transparent nor open to the public.

Levin is proposing expanding the panel to include more members of the government, arguing that the will of the voters and elected officials serving as their representatives should play a larger role in the judicial selection process.

Finally, similar to the changes to the role of the attorney-general, Levin is proposing that government legal advisors – unelected bureaucrats who often serve in the role for decades – be picked by members of the elected government.

Lawmakers should be free to reject or accept recommendations given by legal advisors, Levin says. At the moment, their advice is binding upon the ministries in which they are employed.