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Hilal Çıbık

July 3rd, 2023

Israel’s Constitutional Reform: Judicial Reform or Intervention in the Judiciary?

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Estimated reading time: 7 minutes

Hilal Çıbık

July 3rd, 2023

Israel’s Constitutional Reform: Judicial Reform or Intervention in the Judiciary?

0 comments | 2 shares

Estimated reading time: 7 minutes

by Hilal Çıbık

Protesters demonstrating against Israeli prime minister Benjamin Netanyahu’s judicial overhaul plan, Jerusalem, 27 March 2023. Source: Matan Golan/SOPA/Getty Images.

In recent months, Israel has witnessed wave protests calling for changes in legislation that would restrict the power of its Supreme Court. The proposed changes would effectively limit the Court’s ability to strike down laws passed by the Israeli parliament, known as the Knesset. The move has sparked controversy and concern among many Israelis who fear it will undermine the country’s democracy and erode the rule of law.

But what are the constitutional law implications of these proposed changes, and how might they impact Israel’s democratic framework?

At the heart of this debate is the question of the balance of power between the judiciary and the legislative branch. Israel does not have a written constitution and under the existing system, Supreme Court has the power to strike down laws passed by the Knesset if they are found to be in violation of the country’s Basic Laws. This power is seen as an essential check on the legislative branch, ensuring that laws are consistent with Israel’s constitutional framework and do not violate democratic values or human rights.

The proposed changes to Israel’s Supreme Court legislation would significantly limit this power. If passed, the new law would require a supermajority of 61 Knesset members to override any decision by the Supreme Court to strike down a law. This would make it more difficult for the Supreme Court to challenge legislative actions and would represent a significant shift in the balance of power between the judiciary and the legislative branch.

Another notable change concerns appointing judges. The proposed changes to the Supreme Court legislation would alter the method of selecting Supreme Court justices, effectively granting the ruling government coalition authority over their appointment. At present, a committee comprised of nine members – of which are three Supreme Court judges (including the High Court president), two representatives from the Israel Bar Association, and four members who are elected representatives (two ministers and two Knesset members) – is responsible for selecting judges. However, should the reforms be enacted, the two representatives from the Israel Bar Association would be substituted by two public representatives appointed by the justice minister, resulting in the sitting government holding a majority of the votes (five out of nine) for selecting new Supreme Court justices.

Critics contend that the proposed reform will give the ruling government coalition excessive leading to unrestricted power. They fear it will disrupt Israel’s system of checks and balances and confer too much control on the executive branch. They are apprehensive that the reform will enable the current right-wing and religious government to dismantle existing laws that safeguard the rights of minority groups, women and individuals. Additionally, they allege that this judicial reform is primarily aimed at aiding Netanyahu, who is attempting to evade conviction in his ongoing corruption trials by employing his own administration to override Supreme Court rulings that may be averse to his interests.

On the other hand, proponents of the judicial reforms assert that the Supreme Court holds too much power and that the plan will enhance democracy by restoring the balance between the branches. They cite the United States, where politicians, the president, and senators select Supreme Court justices, as an example. They argue that Israel lacks a written constitution, which undermines the ethical foundation for Supreme Court rulings that supersede the Knesset’s decisions by alleging that they are ‘unconstitutional’. After all the developments and discussions, Netanyahu decided to suspend the negotiations on the amendment until the parliament reopens to have a real dialogue.

It is crucial to carefully consider the implications of any changes to Israel’s constitutional framework to ensure that they uphold democratic values and human rights. While supporters of the proposed changes may argue that the Supreme Court holds too much power, the question remains whether shifting this power to the government coalition would preserve the system of checks and balances or undermine it. It is also essential to ensure that any changes do not enable the government to infringe upon the rights of minority groups, women or individuals. Moreover, while the lack of a written constitution in Israel is a unique factor, it does not diminish the importance of upholding the values of democracy and human rights. For example, the United States may serve as an example of a country where politicians play a role in selecting Supreme Court justices, but it is not without its own challenges and criticisms. Therefore, it is critical to evaluate the proposed changes to Israel’s Supreme Court legislation thoroughly and holistically, considering their impact on the country’s constitutional framework and the values of democracy and human rights. Otherwise, this could be a dangerous trend that threatens to undermine the democratic values that are at the heart of Israel’s constitutional framework.

Israeli’s Supreme Court has had a significant role in the country. Over the years, it has played a critical role in protecting individual rights, promoting equality, and upholding the rule of law. Its decisions have often been at odds with the policies of the government and the Knesset, but it has remained steadfast in its commitment to defending the principles of democracy and justice. However, the proposed changes to Israel’s Supreme Court legislation have significant constitutional law implications; they represent a shift in the balance of power between the judiciary and the legislative branch and could undermine key aspects of Israel’s democracy. It is essential that any changes to Israel’s constitutional framework be carefully evaluated and considered from a range of perspectives to ensure that they protect and uphold the values of democracy and human rights.


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About the author

Hilal Çıbık

Hilal Çıbık is a PhD student in constitutional law at the University of Exeter. She holds a master's degree in International Law and Global Justice program from the University of Sheffield and wrote her dissertation on the expansion of judicial review in the UK. Her study area is constitution, constitutionalism, the judiciary, populism and human rights. She tweets at @_hilalcibik

Posted In: Israel

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