Current Situation:
The committee responsible for picking judges has nine members, including two from the government, three judges, two Knesset members (from both the coalition and opposition), and two representatives from the Bar Association. To appoint a judge, at least seven members must agree.
Reform Proposal:
The reform wants to shift the balance of power in the committee, giving more control to the coalition.
Here’s what would change:
This reform contrasts with the existing structure, where broad agreements among committee members are encouraged, to ensure that the selection process is more inclusive and balanced. The new proposal could shift this balance, sparking a conversation about how judges are selected in the country.
Current Situation:
Today, the President of the Supreme Court is chosen based on seniority. The most tenured Supreme Court judge automatically becomes the President.
Reform Proposal:
The reform seeks to change this process, giving the power of appointment to the committee responsible for selecting judges. Here’s what’s new:
What This Means:
This change is more than just procedural; it’s about who has the power. The President of the Supreme Court plays a critical role, selecting judges for significant cases, deciding the size of the panel, and reviewing requests to disqualify judges for potential conflicts of interest.
By abolishing the seniority principle, the reform could introduce political factors into the selection process. While the current method aims to keep judges neutral and the Court independent, the new proposal may give more influence to the government. It opens a debate about the balance between political control and the independence of the judiciary, a core aspect of the democratic process.
Current Situation:
Today, any standard law can be repealed by a simple majority vote if it conflicts with a basic law. There’s no specific requirement concerning the size of the panel that should review petitions against laws.
Reform Proposal:
The reform proposal will drastically alter the power to invalidate laws:
Furthermore, a law can only be invalidated if it’s in “fundamental contradiction” with a clearly stated provision in a fundamental law. Even though certain basic values like human dignity, preservation of life, freedom, property, and privacy are protected, rights like equality and freedom of expression aren’t explicitly mentioned. They’re considered derived from human dignity and freedom.
Potential Impact:
This reform raises big questions about the court’s ability to overturn laws that might violate equality. Previously, the High Court has used this power to invalidate laws like those relating to surrogacy, recruitment of yeshiva students, and tax discrimination between different settlements. If passed, the reform could limit the court’s ability to intervene in these areas.
Why It Matters:
The reform proposal represents a significant shift in the checks and balances within Israel’s legal system. By requiring a supermajority of judges to invalidate a law and limiting the grounds for doing so, the proposal may alter the balance between the judiciary’s ability to check the legislature and the government’s control over legal principles and policies. This has broader implications for the protection of individual rights and the democratic process in Israel.
Reform Proposal:
The reform proposes a significant change in the way laws can be overridden once disqualified. In addition to limiting the laws that the High Court of Justice can invalidate, the reform wants to introduce a provision that would enable the Knesset (Israeli parliament) to override the High Court’s invalidation of laws that contradict basic laws.
This means that even if the High Court could declare certain laws invalid according to the law, the Knesset could still overcome this disqualification. Previously, it was only possible to override a disqualification if a law contradicted the basic law concerning freedom of occupation. The new change would extend to values protected by the fundamental law, specifically human dignity.
How It Works:
The “superseding clause” will allow the Knesset to re-enact a law with a majority of 61 Knesset members, the minimum number required for any possible coalition. Essentially, it will be impossible to invalidate laws that go against the coalition’s stance, unless all the judges of the Supreme Court unanimously invalidate the law.
Why It Matters:
This part of the reform could further shift the balance of power between the judiciary and the legislative branches. By enabling the Knesset to override the High Court’s decisions with a simple majority, it may potentially lessen the court’s ability to act as a check and balance on legislation that may contradict fundamental principles and rights. It signifies a profound change in the relationship between the branches of government and might have long-term implications for democratic governance in Israel.
The Situation Today:
Currently, the “reason for reasonableness” is a principle used within administrative law, allowing the High Court of Justice and administrative courts to invalidate government actions (whether elected public or professional level) if deemed “extremely unreasonable.”
This principle gives the court the power to challenge government decisions, even if those decisions don’t directly violate any laws, but have justifiable reasons for cancellation. It has been invoked in the past to contest appointments and decisions, such as the appointment of Shas Chairman Aryeh Deri, arguing that his appointment was highly improbable considering his criminal convictions.
The Reform Proposal:
The proposed reform seeks to eliminate the use of the “reason for reasonableness” by courts, including the High Court of Justice. This means that no decision of the government, a minister, or anyone acting on their behalf could be invalidated based on its reasonableness or lack thereof.
This part of the reform emphasizes that the “reason for reasonableness” was never grounded in law but was entirely a creation of judicial rulings. Some voices argue that canceling this reason might lead the Court to develop new doctrines to deal with appropriate situations, such as the reason of distortion of authority that Judge Zamir mentions in his book, and which exists as part of customary law.
Why It Matters:
This change could have significant implications for how government decisions are evaluated and challenged in the courts. By removing a critical tool that the courts have used to assess the validity of government decisions, the reform might alter the balance of power and oversight between the judiciary and the executive. Critics might see this as a restriction on judicial oversight of government actions, while proponents may argue that it restores boundaries between branches of government and reduces judicial overreach.
The Situation Today:
Currently, the Attorney General serves as the authorized interpreter of the law for state bodies, although this interpretation can be subject to judicial review. While the Attorney General’s opinions are considered significant indicators of the legality of administrative actions, they are not binding on the ministers. Furthermore, the Attorney General has exclusive rights to represent the government but no obligation to do so. If a minister disagrees with the advice, they can appear before the court without representation. Legal advisors are appointed through a tender process, similar to other senior public service positions.
The Reform Proposal:
The proposed reform clarifies that legal advice given to the Prime Minister, government, or ministers “will not bind them.” This actually doesn’t change the existing law but emphasizes that ministers may act contrary to the legal advice they receive.
Additionally, the reform suggests that the government may appoint private legal representation in procedures of its choice, a change from the current situation where private appointments must be approved by the Attorney General.
Lastly, a significant change in the reform is the proposal to alter the method of appointing legal advisors for government ministries. The reform would make these positions trust-based, and the legal advisors would be appointed directly by the ministers.
Why It Matters:
These changes could have considerable implications for the relationship between legal advisors and government officials. By emphasizing that ministers are not bound by legal advice and by altering the appointment process, the reform could impact the independence and authority of legal advisors within the government. Supporters might argue that this approach gives more autonomy to government ministers, while critics might see it as undermining legal oversight and risking potential conflicts of interest. Either way, the reform seems to shift the balance of power within the government, and its ramifications would need to be carefully considered.
The separation of powers is a key principle in democratic systems, meant to prevent a government from abusing its substantial power. By dividing powers among different branches of government, each branch can check and balance the others, preventing tyranny and protecting citizens’ rights.
The Purpose:
Separation of powers seeks to ensure that governmental power is used responsibly and fairly. By dividing authority, it prevents any single entity from amassing too much power, and it maintains a balanced approach to governance.
The Situation in Israel:
Israel faces a unique challenge in implementing this principle. The majority in the Knesset (the legislative branch) controls the government, and members of the Knesset also serve in executive roles. This means two of the three main branches, legislative and executive, work in almost complete coordination, leaving the judiciary as the only independent entity.
A Contrast with the United States:
The U.S. system offers an illustrative example of how to implement separation of powers. As famously explained by James Madison in “The Federalist,” the design of the government must be such that its components work both with and against each other. External checks alone are not enough; each branch must have not only the constitutional tools but also the personal motives to resist overreach by the others.
Madison eloquently wrote that the only defense against the concentration of powers is to give officials a vested interest in protecting their own domain. He observed that using such “tricks” to check the government’s tyranny is a testimony to human nature, stating, “If men were angels, we wouldn’t have to Government in general.”
Why It Matters:
The separation of powers is a crucial safeguard for democracy. While Israel’s unique structure has blurred the lines between legislative and executive branches, the principle’s importance in protecting individual rights and maintaining a balanced use of power is universal.
This discussion raises vital questions about how to ensure that governmental power is wielded responsibly and how to protect against potential abuses. Whether in Israel, the United States, or elsewhere, the separation of powers continues to be a foundational idea that shapes the design and operation of democratic governments. It stands as a reminder of the need for constant vigilance and thoughtful design in the never-ending effort to balance power and prevent tyranny.
Balance Between Authorities:
Opinions on the Proposed Reform:
Motivation Behind the Legislation:
Limits to Majority Power:
Ideal Balance of Authorities in Israel:
Bonus – Fostering Respectful Discourse: