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Levin introduces bills to neutralize the Supreme Court, denying nearly all means to control the government.

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Justice Minister Yariv Levin published bills late on Wednesday that will pass his radical program to remake Israel’s judicial system and strictly limit the Supreme Court’s authority for judicial review over Knesset legislation and action. executive.

Reforming the court system will give the government full control over the appointment of judges, including to the Supreme Court, severely limit the Supreme Court’s ability to strike down legislation, and allow the Knesset to re-legislate laws that the court can overturn with a majority of only 61 MKs. Coalition officials said the government aims to have the package of legislation passed into law by the end of March.

The proposals, which Levin partially outlined last week, have drawn strong opposition among a substantial portion of the general public, numerous legal scholars and opposition parties who argue that the reform will remove all checks on government power and jeopardize women’s rights. minorities and weaker elements within society. Opposition leader Yair Lapid called it “not legal reform” but “radical regime change”. Former Supreme Court Chief Justice Aharon Barak likened the proposals to “poison pills” that will turn Israel into a “hollow democracy”, leave citizens defenseless against the removal of any and all of their rights, and mark the beginning of the end of the modern State of Israel.

Levin and other proponents of the measure argue in response that the Superior Court has exceeded its authority over the past two decades and severely undermined the ability of coalitions and elected ministers to enact government policy. Prime Minister Benjamin Netanyahu, who appointed Levin when his coalition took office on Dec. 29, strongly supports the proposals, saying they “will strengthen democracy.”

Majority of the coalition on the panel that chooses the judges

The main bill drawn up by Levin and his cabinet to achieve their goals is an amendment to the Basic Law: the Judiciary.

Under legislation drafted by Levin, the Judicial Election Committee, which is responsible for appointing judges to all courts in Israel – as well as promoting to higher courts and dismissing judges if necessary – will be expanded from nine to 11 members.

Justice Minister Yariv Levin at a hearing of the Knesset Constitution, Law and Justice Committee, January 11, 2023. (Yonatan Sindel/Flash90)

The panel will include three government ministers, including the justice minister who will chair the committee; three MKs, one of whom is likely but not certain to be a member of the opposition; two public representatives to be chosen by the Minister of Justice; and three Supreme Court Justices, including the President.

That will give the government control over seven of the committee’s 11 members. A majority of six committee members will be required to elect Superior Court judges and only a simple majority to elect lower court judges.

The legislation will also institute public hearings for Superior Court candidates, although if such a hearing is not held, the committee will have the right to nominate the candidate anyway.

Almost no means of judicial review

Crucially, the bill specifies the terms under which the Supreme Court can exercise judicial review of Knesset legislation.

While Levin’s Basic Law amendment for the first time establishes in law the court’s right to exercise judicial review, in practice the court’s ability to overturn or amend Knesset laws will be greatly weakened.

That authority has so far been largely derived from the passage of the Basic Law: Human Dignity and Freedom in 1992 and the landmark decision of the Supreme Court’s Bank Mizrahi in 1995.

Supreme Court President Esther Hayut and other justices at a Supreme Court Justice hearing on petitions against the appointment of Shas party leader Aryeh Deri as minister due to his recent conviction for tax offences, January 5, 2023 (Yonatan Sindel/Flash90)

Levin’s bill explicitly states that courts cannot even hear arguments against Israel’s quasi-constitutional Basic Laws, and any decision issued by a court nullifying or limiting one of the Basic Laws will be void.

That clause is being inserted into the legislation to prevent the Supreme Court from barring it from immediately exercising a judicial review of the new government’s reform package.

The Supreme Court will only be able to overturn Knesset legislation if a full panel of 15 court judges, minus any one of those unable to participate for various reasons, presides over the case. Furthermore, any decision that strikes down the legislation will have to gain the support of 80% of the panel, that is, 12 of the 15 justices in a case where all Supreme Court justices are present.

The Knesset, however, could simply re-legislate the law for a period of four years with a vote of just 61 MKs – which all majority coalitions have – meaning that judicial review of Knesset legislation by the Supreme Court will be dramatically limited and easily knocked down.

Furthermore, the Knesset will be able to anticipate any court decision to strike down a law by including a “notwithstanding” clause in the original legislation stipulating that the law will be immune from judicial review.

Israelis take part in a protest against the new government of Prime Minister Benjamin Netanyahu, in Habima Square, Tel Aviv, on January 7, 2023. (Avshalom Sassoni/Flash90)

The Abolition of “Reasonability”

The Levin legislation also imposes another critical limitation on the court, namely, removing the court’s ability to use the “reasonableness” test to determine whether administrative decisions are “reasonable” and were made with due consideration of all relevant factors. .

Over the years, the Supreme Court has used the principle of reasonableness to overturn several key government and local government decisions, including upholding religious rights, ensuring adequate protection against rocket fire from Gaza to civilians in the south, and nullifying political appointments. highly problematic.

The new government strongly objects to the court’s use of the principle of reasonableness, claiming that it is too amorphous and therefore gives the court undue authority over government policy.

“We go to the polls, we vote, we elect, and again and again, people we didn’t elect elect for us… Knesset.

“These reforms will strengthen the legal system and restore public confidence in it. They will restore order: it will allow legislatures to legislate, the government to govern, legal advisors to advise and judges to judge”, concluded the Minister of Justice.

Opposition leaders have fiercely denounced Levin’s proposals, describing them as a political coup, while legal experts, including former Supreme Court justices, have warned that the reform package will deeply damage Israeli democracy.

In an interview with the Times of Israel on Wednesday, former Supreme Court Justice Deputy Chief Justice Elyakim Rubinstein warned that Levin’s reform package could lead to a “democratic dictatorship” and said it would effectively leave Israel with just one branch. of government: alliance majority.

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