As coalition negotiations stall, judicial reform hangs in the balance

May 26, 2019 by Alex Traiman -
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Attempts by Israeli Prime Minister Benjamin Netanyahu to form a governing coalition of the 65 right-wing and religious Knesset members that have recommended him as the next premier have been proving difficult.

Alex Traiman/JNS

One key issue being discussed as part of the complex negotiations is controversial legislation that would curtail the powers of Israel’s judiciary, which is arguably the branch of government with the widest authority.

“The next week is extremely important regarding the future of the court,” says Moshe Koppel, chairman of the Kohelet Policy Forum, an Israeli think tank that has been pushing for judicial reform.

“If reform of the court is included in the coalition agreements, then there is a chance that some of the reforms will be enacted, says Koppel. “Of course, if court reform is not in the coalition agreements, then reform of the court will be put on hold.”

If Netanyahu fails to successfully negotiate coalition agreements by May 29, then he may lose the opportunity to form the next government. With the deadline fast approaching, he may be forced to give in on issues of import to ensure the stability of an incoming government.

Two of the key issues that have received the lion’s share of attention in the media are an override clause that would give a Knesset majority the power to overturn a Supreme Court decision, as well as an even more controversial immunity clause that would postpone any legal proceedings against a sitting prime minister.

According to Yohanan Plesner, resident of the Israel Democracy Institute, a think tank that generally views the court as the protectorate of Israeli democracy, “this entire discussion has been contaminated because it is being discussed in the context in providing immunity to a number of politicians that are highly likely to be indicted.”

Plesner says that without a constitution, there should be conversations about the stability of Israel’s democracy and the balances between the branches of government, noting that at present, it is too simple for the legislature to pass or change Israeli Basic Laws that serve as a fragile quasi-constitution.

“This entire discussion should be delayed,” says Plesner, who states that if the immunity law is passed, “the Knesset will become a safe haven for criminals.”

He also warns against the override clause, noting that “judicial review is the only mechanism that ensures the government is operating according to the law.”

‘Logic to splitting the positions’

Meanwhile, Koppel warns that it is the court, and not the legislature or executive branches, that operates without any oversight, noting that the override clause “is simply one possible mechanism to deal with the court’s abuse of power.”

While immunity bills for sitting heads of government exist in other countries, including France and the United States, Koppel says that the two controversial laws “should be separated from the question of judicial reform.”

According to him, “the immunity and override proposals are the preferred framing” of the issues of judicial reform by those who are opposed to it. Generally speaking, many of the opponents of judicial reform are also political opponents of Netanyahu.

Koppel says several key areas need to be addressed to fix the court.

“The first is the justice selection process,” he explains. “While in other democracies, including the United States, elected officials select and confirm justices for the Supreme Court, in Israel the process is much more complicated.”

High Court justices in Israel are selected by a nine-member committee that first includes three existing members of the high court. The next two members are from the Israeli Bar Association. Historically, the court and the bar association have formed a united bloc that accounts for five of the seven votes needed to approve a justice, keeping the court homogenous and historically aligned with Israel’s left-wing.

“The second issue is who can bring a complaint to the court,” says Koppel. “In just about every country in the world, only an injured party with standing in a particular case can petition the court. In Israel, any party can petition the court.”

Many of the most controversial cases tried by the court were filed by non-governmental organizations (NGOs) with distinct political agendas.

“A third issue is reforming the role of Israel’s attorney general,” he says, who has “three separate roles wrapped into a single position.”

The attorney general, Koppel explains, acts as “the chief prosecutor—the one who defends the government, and also serves as the government’s legal adviser.” As such, Koppel suggests that the attorney general frequently has conflicts of interest while in the course of fulfilling these roles. The attorney general tends to use the court’s likely rulings as the basis for his own legal opinions, making the position an agent of the court as opposed to an agent of the government.

Plesner says “there is logic to splitting the positions,” but cautions that among those who are proposing that the position be divided, “the motivation would not be to strengthen the rule of law, but rather to weaken both positions.”

The outgoing government, led by Justice Minister Ayelet Shaked, worked to at least temporarily break the selection patterns of justices and managed to change the makeup by appointing four new justices, as well as promised new reforms in a future government. Shaked and her New Right Party, however, failed to cross the electoral threshold, leaving additional reforms of the court in the hands of Netanyahu and his incoming coalition.

Yet with indictment charges looming against Netanyahu in multiple breaches of trust cases, it is uncertain how far he will be willing or able to go to curtail the court’s current powers.

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