Does Israel really need judicial reform? 5 better ways to fix judiciary

Amending the Nation-State Basic Law, condensing criminal and civil proceedings and, above all, passing a basic law on legislation are what will truly upgrade the justice system and provide worthy alternatives to the Levin plan.

Justice Minister Yariv Levin addressed five issues under the heading of his proposed “reform” to the judicial system: instituting an override clause enabling the Knesset to bypass Supreme Court decisions with a 61-member majority; annulling “reasonability” as a consideration for the courts in reviewing legislation and government decisions; stripping the Supreme Court’s power to strike down basic laws; changing the composition of the Judicial Selection Committee; and allowing ministers to appoint their own legal advisers rather than being beholden to ministerial legal counsels. All of these proposed measures indicate that the government seeks to grant itself unlimited power and do away with all oversight and restrictions. And so, it is not surprising that most of the proposals in this reform relate to the only institution capable of restraining the power of the government – the Supreme Court.

But if it’s reform that we’re looking for, then why not a reform that benefits citizens – reform that is truly needed by every one of us, not just the government? There is no doubt that there are plenty of flaws in the justice system that demand attention, planning, and reform. These flaws harm the interests of citizens and have nothing to do with the government’s “power.”

Here are five alternative proposals for upgrading the judicial system – without destroying democracy, without doing away with the mechanisms for oversight of the government, and without harming our basic rights. Simply, proposals for fixing what needs to be fixed:

1. Cut back criminal and civil proceedings

It’s no secret that the courts are overloaded. Legal proceedings in Israel can sometimes take years. Hearings are not continuous, and cases are often postponed by many months. In some instances, the parties have to wait months and even years for a verdict. The situation is particularly serious when it comes to criminal cases. The stain of criminality can hover over an individual’s head for a long period of time; and even if he or she is eventually exonerated, justice comes late – and late justice is no justice at all. This issue, which affects every citizen who has dealings with the justice system, demands in-depth reform, along with the allocation of necessary budgets.

2. Establish an additional appeals court

Israel’s Supreme Court serves as the court of appeals for all cases heard in the district courts, along with functioning as the High Court of Justice that hears petitions against the government. The structure of this system has remained unaltered since the establishment of the State of Israel, despite the huge increase in the country’s population and in the number of cases heard. The fact that a substantial portion of the Supreme Court’s limited resources is dedicated to hearing civil and criminal appeals makes it difficult for the court to focus on constitutional and other substantive issues. An additional judicial layer should be established between the district courts and the Supreme Court: an appeals court, tasked with hearing appeals from district court cases. This proposal has been presented by most of the presidents of the Supreme Court in recent years – Shamgar, Barak, Beinisch, and Grunis – but has not been acted on.

3. Amend the Nation-State Law

The Basic Law: Israel as the Nation-State of the Jewish People is a particularly important basic law, but it suffers from several glaring omissions. It is not based on a principle of equality; that is, there is no mention of the minorities for whom Israel is also home, nor is there mention of Israel being not only Jewish but also democratic. In addition, the law makes no reference to the Declaration of Independence – Israel’s founding document. The law thus needs several minor amendments in order to take its place as a value-based document shared by all of Israel’s citizens.

4. Divide up the attorney-general’s role

The Shamgar Commission, which examined the attorney-general’s role, wrote in its 1998 report: “In our opinion, developments in government institutions overall, and in the judicial system in particular, demand examination of additional subjects beyond those discussed by the Agranat Commission.” This statement remains true today regarding the office of the attorney-general. From a positive perspective and with all the needed caution, the possibility of divvying up the attorney-general’s powers between two separate institutions should be explored: the attorney-general and the state prosecutor. The legal clauses relating to the attorney-general are scattered among more than 100 laws. Thus, this would be a large-scale project requiring mapping, planning, and in-depth discussion. It is not something that can be decided upon from one moment to the next or without serious thought.

5. Complete the process of constitutional legislation

If defining the relations among branches of government is on the table, then what could be more appropriate than completing Israel’s constitutional process to mark the country’s 75th anniversary? We must reach as broad a consensus as possible among the Knesset factions to complete our bill or rights and enshrine it in basic laws to prevent these rights from being bartered according to the political whims of one camp or another. The time has come to pass a basic law: legislation that will formally define the relations between the Knesset and the government; the procedures for passing and amending basic laws; and the Supreme Court’s power to strike down legislation. Israel’s citizens deserve a broad, shared, and consensual process for writing one of the most important chapters in Israel’s constitution.  ■

Prof. Suzie Navot is vice president of the Israel Democracy Institute.