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Proposed Changes to Israel’s Judicial System “Fatal Blow to Israeli Democracy”

One of the first orders of business of Benjamin Netanyahu’s new government is an “overhaul” of Israel’s judicial system. The legislation proposed by the prime minister’s coalition would radically change the process by which justices are appointed, and it is controversial, to say the least. In addition, it will take away the high court's ability to declare a law “unconstitutional.” Israel doesn’t have a constitution, but relies on what is called “The Basic Law.” If the Knesset passes a law that goes against the Basic Law, like in the US, the court can strike it down. These proposed changes have stirred up fiery words and large protests across the country this week.

“Last week, Netanyahu’s Justice Minister Yariv Levin presented a highly detailed program to hobble the court — by all but eliminating its capacity to strike down legislation and government decisions.”

Even many conservative Israeli leaders are shocked at the proposed changes. Dan Juster writes, “They claim it would destroy judicial review and create a majority dictatorship and successive governments will change basic laws over and over again.

There will not be legal protection for minorities if the Knesset votes to remove them.” Even the outgoing head of the Israeli Defense Forces has spoken out against plans for the new government.

In America, the Supreme Court and all the lower courts are appointed by politicians (and we have all seen how political it can get, especially when there is a Supreme Court seat on the line). In Israel, we have mostly kept politics out of our judicial system for the last 70 years, enabling our Supreme Court to be free from fear of retribution when the next government takes power. Instead of politicians, a panel of professionals (lawyers, judges) and the Justice Minister, another cabinet member, as well as a couple of Knesset members decide by committee who will sit in the Supreme Court and other judicial seats.

Whether one is on the left or the right, it is clear the American model is flawed. Since Robert Bork was rejected purely for his political beliefs and not his ability as a judge in 1987, the Supreme Court has become completely politicized.

In an unprecedented move breaking the ethical protocols of sitting justices, the Israeli Supreme Court President Esther Hayut denounced the proposed reforms, calling the legislation a “fatal blow” to the democratic nature of the nation.

“This is an unbridled attack on the judicial system, as if it were an enemy that must be attacked and subdued,” Hayut said, speaking at the Israeli Association of Public Law conference in Haifa this week.

“This is a plan to crush the justice system. It is designed to deal a fatal blow to the independence of the judiciary and silence it,” Hayut said. “The 75th anniversary of Israel’s independence will be remembered as the year in which the country’s democratic identity was dealt a fatal blow.”

In addition to Supreme Court President Hayut voicing her objections, almost all of the attorney generals and state attorneys since 1975 issued a statement of their disapproval.

“We, who served as attorneys general or state attorneys from 1975 until recently, were shocked to hear Justice Minister Yariv Levin’s plan for changes to the judicial system. We are convinced that this plan does not herald the improvement of the system, but threatens to destroy it.”

“The plan proposes change to the method for appointing judges, thus turning the Supreme Court from an independent institution that rules without fear and without bias into a quasi-political body that will be suspected of using the law in a biased manner in favor of the government; it significantly limits the authority of the court to exercise effective criticism of the government so that it does not abuse its power; it allows a coalition majority to legalize any act of the government, no matter how wrong and harmful it may be, by means of an override clause; it may impede the function of the ministries’ legal advisers as gatekeepers whose job it is to warn against illegal decisions.”

Their letter ended with, “The achievements of the Supreme Court, which advanced society and benefit every person, are now in serious peril. That’s why we call on the government to withdraw from the published plan and prevent the serious damage to the judicial system and the rule of law, in order to preserve Israel as a Jewish and democratic state in accordance with the values expressed in the Declaration of Independence.”

University students and others have been staging protests this week as well. At one point, former Defense Minister Benny Gantz encouraged “mass protests to make the country tremble.” This brought a startling response from some within Netanyahu’s government who threatened to arrest those in opposition for “treason.” Netanyahu brought assurances that Israel doesn’t arrest those who oppose his government but later hinted that there might be arrests.

Israel has been a beacon of light in the dark neighborhood. But the new government, being heavily influenced by religious zealots, threatens the democratic nation of the Holy Land. The good news is that God sees everything. Israel is part of His plan. Please pray for Israel.