Israeli judicial reform: Where do Herzog, Levin/Rothman plans differ? - explainer

President Isaac Herzog presented five principles for negotiation on judicial reform on Sunday night that touched on key elements of the reforms proposed by Justice Minister Yariv Levin in early January.

Herzog’s proposal was announced the night before a Constitution, Law and Justice Committee session in which chairman Simcha Rothman proceeded with votes to send two bills that are part of the reform to the Knesset on Monday for first readings. Another private bill by Rothman is set to be placed before the Knesset plenum on Wednesday; discussion on a similar government bill took place Tuesday afternoon.

Since Levin’s announcement, the reform plan has evolved through discourse in the committee and friction with government systems. Herzog’s negotiations, if they move forward, would be another development on legal issues that have long been debated in the halls of the Knesset and academic circles. Here is an explanation of three key elements of the judicial reforms.

Judicial review

Judicial review is the power of a court to strike down laws that it determines are in contradiction or violation of a constitution or laws with superior status.

Israel lacks a formal written constitution, having compromised at the dawn of statehood to introduce quasi-constitutional Basic Laws that would be assembled into a constitution at an undetermined date. These Basic Laws, which can be passed in almost exactly the same way as regular legislation, have no special status.

In the early 1990s, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty were instituted, with provisions that regular laws could not contradict them. The High Court of Justice eventually determined that these laws had constitutional supremacy over regular legislation, which allowed the court to engage in judicial review.

Pro-reformists have contended that the High Court seized this institutional power unilaterally without input from the public. Consequently, the reform movement has sought to drastically limit the ability of the court to use judicial review.

In the bill approved by the Law Committee on Monday, the High Court would be barred from engaging in review of matters pertaining to Basic Laws. Gray areas that the court would no longer be able to address in extreme situations would include the ability to intervene when there is concern that the legislature has abused its constitutional authority to pass laws, where there are procedural issues or where the legislation is in contradiction to democratic and Jewish values. The court would be unable to hear cases in which the Basic Laws are the point of contention.

The committee discussed a similar bill on Tuesday that also would limit the High Court’s judicial review of regular legislation. The court would be able to strike down a law only if the entire bench of justices was assembled and all agreed that the legislation clearly contradicted a Basic Law.

In Herzog’s Sunday proposal, he put forward the idea of passing the Basic Law: Legislation. This Basic Law, proposed and debated repeatedly over the years, is considered by some legal experts as a missing step in the constitutional process, providing a clear constitutional framework.

The bill would establish the relationship and boundaries between the judicial and legislative branches, including enshrining the ability to engage in judicial review of regular Basic Laws. Herzog said the conditions and consensus among justices for this law would be subject to negotiation. Introducing the Basic Law: Legislation would also establish a special method for introducing Basic Laws and prevent the High Court from engaging in review of laws passed in this way.

Override Clause

A clause to allow the Knesset to vote to overrule the High Court striking down a law has been debated for years. The override clause was discussed as part of the 2022 general election campaign by right-wing parties.

When Levin first proposed an override clause in early January, it would have allowed the Knesset to vote down a High Court decision with a simple majority of 61 MKs.

Since the reform process began, the override framework has changed. According to the bill discussed in the Law Committee session on Tuesday, the override would be written into the law at the time of its legislation, preemptively preventing the court from issuing decisions on the matter.

The override provision would have to be accepted by a majority of MKs in three readings. After a year has passed since the tenure of the Knesset that enacted the law, the court would be able to revisit it.

Herzog proposed to discuss an override clause as part of Basic Law: Legislation, saying the degree of majority and procedure should be determined by negotiation and agreement.

Reasonableness Clause

The reasonableness clause is a principle that allows for a court to interfere in administrative action that is deemed to be beyond the scope of what a reasonable and responsible authority would undertake.

A recent example was the disqualification of Shas chairman Arye Deri from appointment to a ministerial post largely due to his extensive criminal convictions. The High Court determined in January that Deri’s appointment was unreasonable. Critics of this clause have argued that it is another power developed by the court for itself.

When Levin first introduced his proposal, he said he did not recognize a place in the legal system for the reasonableness clause.

Rothman’s written proposals have since specified that the reasonableness clause would be limited to decisions not made by elected officials.

Herzog agreed on Sunday that the use of the reasonableness clause should be limited. Unrestricted use could otherwise cross the boundaries in the separation of powers between the judiciary and the executive and legislative branches, he said. There was room for its use in extreme cases, the rules for which have to be established through negotiation, he added.