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Netanyahu gov’t takes aim at High Court

Israeli Justice Minister Yariv Levin has unveiled a plan that would empower the Knesset to overturn some Supreme Court rulings and grant the government more input over nominations to the bench.

By Erin Viner

The Supreme Court is the highest Court of Appeal in the State of Israel, and also serves as a High Court of Justice (Bagatz), hearing Petitions against various governmental authorities at first instance as well as against rulings of Appeals Tribunals.

Levin presented a sweeping “reform of governance” he has been working on for two decades, that would restore power to elected officials rather than those who he and his supporters consider to be overly-interventionist and leftwing judges.

Revisions include a simple 61 majority vote by the 120-seat parliament to provide lawmakers with a greater role in the appointment of the Supreme Court judges. Until now, the justices have been appointed and dismissed by the Judicial Appointments Committee that consists of professionals, lawmakers and other judges. The new plan would afford MKs a majority in that committee – primarily from the ruling right-wing and religiously conservative government. Such a move would transform current composition of the nine-member Supreme Court from just three members of the Netanyahu coalition to a majority of five.

“There will no longer be a situation whereby judges choose themselves in back rooms with no protocol,” insisted Levin, detailing that “henceforth be two representatives of the public would be chosen by the justice minister” instead of  the Israel Bar Association.

Another major shift would grant parliament effective ‘veto power’ to override court verdicts, which Levin characterized as a more “balanced” arrangement that would end the “striking down of Knesset laws without authority.”

The proposal would also remove a “reasonableness” clause used by the court in the review of government decisions; and lastly, permit coalition ministers to appoint their own legal advisers rather than submit to counsel from advisers operating under the Justice Ministry.

“There will no longer be a situation whereby judges choose themselves in back rooms with no protocol,” Levin asserted, detailing that “henceforth be two representatives of the public would be chosen by the justice minister” instead of the Israel Bar Association.

Members of the new religious-nationalist government led by Israeli Prime Minister Benjamin Netanyahu, which took office last week, have long accused Supreme Court justices of overreaching their mandate in ways that don’t represent the public.

The announcement, which had been expected, is likely to raise international concern over the status of Israeli democracy. Netanyahu, who returned to power after winning the 1 November election pledged during a speech in Jerusalem last week that his new government will “undertake reforms that will protect the right balance between the three branches.”

The Prime Minister has campaigned against the judiciary since being indicted for corruption. Strongly maintaining innocence on the charges, Netanyahu alleges he has been the victim of a “witch hunt” by prosecutors, police and a hostile media.

Levin’s plan evoked an immediate and wide-ranging response from critics against the weakening of the judiciary.

“Those who carry out a unilateral coup in Israel need to know that we are not obligated to it in any way whatsoever,” Opposition leader and former Premier MK Yair Lapid wrote on Twitter, underscoring, “We will not only fight in every possible way against each and every one of the measures Levin will be announcing this evening. I am saying in advance that we will reverse them the moment we return to power. Anyone who carries out a unilateral revolution against the system of government in Israel should know that we are in no way committed to it.”

Referring to Netanyahu’s controversial appointment of ultra-Orthodox Jewish politician Aryeh Deri as Finance Minister after serving a half-term as Interior Minister and Health Minister – despite previous convictions, Lapid added, “Like a gang of criminals, the day before the High Court hearing on the Deri law, the government placed a loaded gun on the table. What Yariv Levin presented today is not legal reform, but rather a threatening letter. They are threatening to destroy the entire constitutional structure of Israel.”

Deri, one of the founders of the Shas party, received a suspended one-year jail sentence and paid a hefty fine last year as part of a plea deal on tax evasion charges. In addition, he served 22 months of a three-year term behind bars after being found guilty of accepting bribes during his previous post as Interior Minister, also during a Netanyahu-led government.

One of the first steps taken by the new Netanyahu government was passage of what has become known as the “Deri Law,” candidates for ministerial positions are not forbidden from serving if they were not sentenced to prison. Today, an 11-member High Court justice panel chaired by veteran Chief Justice Esther Hayut began deliberations on whether Deri’s last conviction constituted “moral turpitude,” which bars ministerial appointments for seven years under Israeli law.

Attorney General Gali Baharav-Miara has vigorously condemned Deri’s selection by Netanyahu, arguing to the High Court that “the appointment deviates radically from the standard of reasonableness and should be considered null and void.” She declared her opposition just hours before Levin called for the striking down of the court’s “reasonableness” criterion.

Israel Bar Association President Avi Himi charged that, “The new government wants power without limits, without oversight and without restraints and to turn the State of Israel from a Jewish, democratic and liberal country into a benighted one.” Moreover, in reference to the High Court review of the Deri Lay, Nimi said the timing of Levin’s announcement “is certainly not coincidental and is an antidemocratic step in and of itself that is designed to threaten the justices of the Supreme Court and to do harm to their independence to decide to the best of their judicial” judgment.”

The Bar Association Chief went on to say that the more “clearly appears to be a lesson that the Justice Minister learned from [Turkish President Recep Tayyip] Erdoğan, in reference to allegations of weaking his own nation’s judiciary. “We will not permit harm to the independence of the court. We won’t permit the politicization of the court and will not permit the tyranny of the government. We will do everything we can to prevent improper and severe fast-tracked steps that threaten the country’s character, including taking to the streets,” he further vowed.

Previous Justice Minister and former Likud member Gideon Sa’ar, also slammed Levin’s reforms for violating the vision of late Prime Minister Menachem Begin, who founded the Likud party to which Sa’ar once belonged. “There’s no doubt that Begin would have rejected each one of the planned changes to Israeli law. The real students [of Begin] must fight this. And that’s what I will do,” he said.

Other Israeli critics of the measures defend the court as a bastion of protection for minority rights and the separation between religion and state.

“The whole idea behind everything here is to give the politicians and the majority of the coalition ultimate power, that we will have no checks and balances whatsoever,” said Amir Fuchs, a senior researcher at the Israel Democracy Institute (IDI), adding that, “We are already in a very fragile situation when we talk about human rights and our constitutional foundations because we have almost no checks and balances.”

Recent IDI polls found that a majority of public respondents believe the Supreme Court should hold the power to strike down laws that conflict with Israel’s Basic Laws, which serve as a sort of constitution.