Law in Israel

The Israeli government’s proposal to change the judicial system has caused a serious political crisis in the country. The opposition has staged massive demonstrations claiming that the democratic system and human rights are in danger. Complaints also came from the United States. President Joe Biden and lawmakers in this country have spoken out against reform and, in an unprecedented move, urged the ruling party and the opposition to reach a consensus to avoid deepening differences.

President Biden has said that the nature of Israeli and American democracies is based on strong institutions, mutual checks and balances, and an independent judiciary; He added that consensus is essential to ensure acceptance and continuity.

The proposal considers the system of appointment of judges, opinions on laws approved by Parliament and the role of the Attorney General and legal advisers in the institutions that make up the executive branch. Currently, the Judges Selection Commission (CSJ), responsible for the appointment, promotion and dismissal of judges, is composed of two ministers, two legislators (including one from the opposition), two from the bar and the President, and two members of the Supreme Court. The ruling party would have three members, the opposition one, and the interim judges and their association five. The process is secret.

The second aspect is the use of “reasonableness” to challenge laws passed by Parliament. In a recent case, the Supreme Court ruled that Arye Deri’s appointment as minister was improper because he had been found guilty of corruption. Arye Deri was elected in the last elections by the Shas party, which is part of the ruling coalition, and his appointment was approved by a legislative majority. Columnist Yaakov Katz says the Supreme Court’s objection was based on the “reasonableness” test, because there is no law preventing Deri from taking office.

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Israel does not have a Constitution, and the Supreme Court exercises the above principle based on the Basic Laws approved by Parliament, and in particular the interpretation of the Human Dignity and Freedom Law approved in 1992. The amendment states that the challenge must be approved unanimously by the 15 members of the Supreme Court, and that the Parliament, with a simple majority of 61 members, can revoke the decision of the Court and restore the validity of the law. Along the same lines, the proposal envisages limiting the power of the Attorney General and legal adviser in ministries to the role of non-binding advisers to avoid their interference in political decisions and the application of personal criteria to open investigations.

The President of the Supreme Court, Esther Hayoutand the Attorney General Gari Baharav-Miara, demonstrated against the reforms because it undermines the independence of the judiciary, gives a blank check to the legislative branch and denies the right of the Cortes to control the executive branch. In both cases, the reform aims to limit the scope of action of the Supreme Court and the prosecution to challenge laws approved by parliament.

The discussion on judicial reform opened up a debate on the limits of the independence of the Supreme Court and the prosecution service. Center and left have turned to a massive effort to defend each other’s autonomy and to restrain the power of the elected parliament in democratic elections. At the base of this opposition is the composition of the legislature with a right-wing or religious coalition that could move forward with laws that will affect individual rights and the simple majority to overrule the Supreme Court’s objections granting excessive power to the party majority. In proposals for constitutional reform in Latin America, the left has taken a position similar to that expressed today by the Israeli right to restrict the jurisdiction of the judiciary by accusing it of making law.

The conflict raised in Israel and other countries continues to be the meaning of democracy, the balance of power and respect for minorities. It is not reduced only to imposing the will of the majority but also to respecting individual rights, for which it will be necessary to overcome the antagonisms which characterize democratic societies at the present time.

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