Judicial reform is far from over, gov't is just using new methods - analysis

On January 4, 2023, Justice Minister Yariv Levin announced his plans for the “first stage” of a judicial reform. The plan included four parts: Legislating an Override Clause that will enable a 61-MK majority to re-legislate laws struck down by the High Court of Justice; rescinding the Reasonableness Clause, in order to block the High Court from striking down executive decisions that are deemed “extremely unreasonable”; changing the status of the attorney-general, so that its legal opinions are merely advisory and not legally binding; and changing the makeup of the Judicial Appointments Committee such that the governing coalition will have control over judicial appointments, including to the High Court.

The override clause seemed to have dropped from the coalition’s radar even prior to the outbreak of war on October 7; the coalition passed the reasonableness clause in July 2023, only to see it struck down by the High Court in January of this year; and the other two issues faded into the background after the Hamas massacre and ensuing war completely altered the government’s agenda.

But slowly and surely, these two issues – the attorney-general’s status and the makeup of the judicial selection committee – have returned to the forefront of the government’s agenda.

However, this time, the government is attempting to instill these changes by changing facts on the ground away from the spotlight, instead of by passing them as legislation.

The more obvious of the two is the increasing tendency in recent months by the government as a whole, or by specific ministers, to ignore the AG’s legal interpretations by providing alternative interpretations, or simply by proceeding with a move that the AG deemed unlawful.

To name a few: Levin’s approval of legislating a bill proposal from 2022 regarding drafting haredi men into the IDF, despite the AG assertion that the move was “not legally viable”; a decision by the government to broaden its private representation in the court case against the haredi IDF exemption; a decision by Finance Minister Bezalel Smotrich to continue providing haredi families daycare subsidies for fathers who are of military age and are legally required to enlist in the IDF; and a decision by National Security Minister Itamar Ben-Gvir to ignore the AG’s opinion, that his promotion of a police officer who was indicted for throwing stun grenades at protesters was illegal.

But, under the radar, Levin has also not given up his desire to alter the judicial appointments committee. Levin, who sets the agenda for the committee meetings, has mostly done this by refraining from bringing to the meetings an appointment for Chief Justice (Uzi Fogelman has filled the position in the interim, but is set to retire in October), and refraining from electing three new High Court justices to fill the two vacancies left by Esther Hayut and Anat Baron’s departure last October, and Fogelman’s soon-to-be vacant spot.

Levin’s problem with the committee is that it has a 6-3 majority in favor of appointing liberal justices – three judges, two Israel Bar Association members, and opposition MK Karine Elharrar, versus the three representatives of the coalition, Levin, National Missions Minister Orit Struk, and Otzma Yehudit MK Yitzhak Kreuzer. This majority has traditionally been the case in the committee, and Levin’s argument in favor of changing it was that he believed it has led to a homogenous court.

In addition, Levin wanted to influence the position of chief justice. The chief justice has a number of statutory authorities, such as deciding on the makeup of national committees of investigations, and also determines the makeup of the bench on High Court positions.

Rather than the traditional “seniority system” that has existed since the state’s founding, which would have liberal judge Yitzhak Amit take over, Levin has insisted that conservative judge Yosef Elron become the next chief justice. Elron was the only judge to put his name forward as a candidate other than Amit.

After blocking the committee’s formation for months, Levin eventually relented, and the committee has in the past year appointed dozens of justices to lower courts. The High Court of Justice, however, is another story, as it is the body that hears petitions against the government, and serves as Israel’s central check on the government’s power.

Altering the makeup of a committee now that it has already began operating is highly unlikely. Instead, Levin put forward a compromise proposal this week, a day before the court was set to rule on a petition requesting the court to force him to elect the chief justice and fill the vacancies.

The chief justice is elected by the committee with a simple 5-4 majority. Until 2008, new judicial appointments also required a 5-4 majority, but then-MK Gideon Sa’ar passed an amendment to require a 7-2 majority for judicial appointments.

Levin’s proposal was that Elron will serve as chief justice for one year until his expected retirement in September 2025, after which Amit will take over. Regarding the three vacancies, Levin proposed that the first be filled by the representatives of the judicial system on the committee proposing two candidates, of whom the elected representatives (MKs and ministers) will choose one. The second will be filled in an opposite manner – the elected officials will choose two candidates, and the judicial representatives will choose one of them; and the third will be a current regional court judge, and approved unanimously.

Disagreement from Chief Justice

Fogelman was quick to reject the proposal. He argued that there was no real reason to cancel the seniority system. More significantly, Fogelman argued that the appointment method would “cancel out” parts of the committee.

What Fogelman meant was that the proposal would lead to one judge being completely identified with the political camp, and one completely identified with the judicial camp. This would negatively affect public trust in rulings by both judges.

Moreover, the rationale behind Levin’s proposal contradicted Sa’ar’s 2008 amendment. The purpose of the amendment was to give the three members of the coalition and the three judges mutual veto power over new High Court appointments, meaning that only candidates agreed upon by both sides would receive the appointment. Levin’s proposal, however, would lead to a situation where two of the court’s judges would be elected without consensus. At its core, Fogelman argued, Levin’s proposal was to have one member of the court appointed by him personally, and this was unacceptable to him.

Levin’s renewed attempt to gain control of at least one High Court appointment, and the government’s increasing tendency to ignore the attorney-general, indicate that the reform is far from over, and that rather than drop the controversial reform, the government is attempting to accomplish it by other means.