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On January 4, 2023, immediately upon its establishment, the 37th Israeli government, led by Justice Minister Yariv Levin, requested a reform that sparked lively public debate, support and protest.

The legal reform (or some would define it as a governmental coup) seeks to lead to fundamental changes in the legal system in Israel, such as the "judgment of supersession" and the regulation of "disqualification of laws", the abolition of the "probability cause", the definition of the role of "legal advice" as giving advice that does not bind the Knesset and the government and Changing the composition of the committee for the selection of judges".

This legal reform represents the broader reform of the political system in the country, in the establishment of a majority government of 64 mandates. In the present article I would like to clarify and define what the concepts of a regime coup and reform are actually about, which according to many sources will abolish the democratic regime in Israel after 75 years in place of the state.

Note: Back in 2019 I edited and published an article entitled: The Supreme Court undermined its own status by becoming a focus of social and political conflict between the population groups in Israel.

The main points - the reform and the protest

1) Constitutional crisis and fortifications

The current fight is boiling over, since some claim that the legal adviser to the government (Gali Beharev-Miara) held a discussion about the possible removal of the Prime Minister, Benjamin Netanyahu, to Netzura.

Imprisonment: This means that the Prime Minister, as the holder of a governmental office, is prevented from fulfilling his duties due to the arrangements impugned in the constitution, or according to custom, when some claim that A prime minister is in a state of conflict of interest and cannot continue in his position And not to deal with the issue like legal reform (like Netanyahu who is being indicted for bribery, breach of trust, etc.).

I agree with the definition of the Honorable Attorney Lenchner, that in a constitutional crisis, the state actually acts contrary to the enacted constitution. Such an action causes a change in the image of the state from the aspect of its democratic nature.

But the State of Israel does not actually have a constitution...

If so, the Prime Minister must go to the fortresses. why?
Because he is in a conflict of interest, to carry out a legal reform that will lead the country to an unpredictable future, when there is a fear that politics will infiltrate the legal system in Israel.

why? Because the legal reform includes a cardinal change, which determines reason The legal advisers of the ministers in the government will become positions of trust for the politicians and will lose their designation as professional advisers, when their opinion is not binding.

In such a process, the government will be given the option of independent legal representation in court, and not of the Attorney General. Of course, the Attorney General and the legal advisors in other government ministries (such as the Ministry of Transportation, the Ministry of Defense, the Ministry of Religion and more) - Their opinion will be defined as one that does not bind the government.

2) Increasing governance while reducing judicial review:

From studying the Levin reform proposal, the Minister of Justice, we learn that in order to increase the government's ability to govern (the executive branch) and the Knesset's ability to enact laws (the legislative branch), moves that will reduce judicial review (the judicial branch), the following changes are necessary for both branches:
1) The coalition will have a majority in the committee for selecting judges (6 out of 11), with the aim of increasing the government's ability to govern. The final outline of the composition of the committee will include 3 judges of the Supreme Court, three ministers, three committee heads of the Knesset, two public representatives appointed by the Minister of Justice who will replace the representatives of the Bar Association
 2) There will be a change in the appointment of the President of the Supreme Court: The president will be elected through the committee for the appointment of judges, he can be an external appointment and not an appointment of the veteran judge serving in the court. The appointment of the president and his deputy will be limited for 6-7 years.

These changes may significantly harm the rights of the minority represented by 56 MKs.

3) Cancellation of the reason for reasonableness

Abolishing the use of the reason of reasonableness for rejecting instructions received in accordance with the law and the rules of the administrator: in common law in Israel, the judges reason within their discretion how the reasonable person would have acted (the reason of reasonableness) in this or that situation in order to lead to the conviction or acquittal of an accused.

In the current reform it is proposed that the court will not replace the judgment of the elected officials (Members of the Knesset / Members of the Government) when it interferes in their decisions. That is: instead of the judge's discretion, decision-making will be returned to the elected government.

4) Enacting a superseding clause

The intention was that the legislative authority, i.e.: the Knesset of Israel, can, with a majority of 61 MKs, re-enact a law invalidated by the Supreme Court. Likewise, the Knesset can re-enact a law that was enacted by the Knesset before it even if the law was invalidated by the Supreme Court.

Another move is that the court will not discuss fundamental laws
(A fundamental law in Israel has constitutional status. This decision was implemented by the First Knesset in order to gradually formulate a constitution for Israel, due to a dispute that prevailed regarding the enactment of a constitution for Israel).

And what will happen on the issue of invalidating laws?
It will be possible to disqualify laws, but only through the Supreme Court, only and when 80% of the full composition of 15 judges rules that way.

In addition, the amount of time allocated to discussions on the issue will be limited. Examples:
A) In April 2018, there was a crisis with the problem of infiltrators. The High Court (one of the functions of the Supreme Court is the Supreme Court is to act as the High Court, which audits the government authorities for preserving the basic values ​​on which democracy in Israel is founded.) It rejected reaching an agreement with a third country that would take them in. Already at that time the Jewish Home and Likud parties proposed to add the clause of overcoming (Shachar Hai 25.4.2008/XNUMX/XNUMX).

b) The Ministerial Committee for Legislative Matters unanimously approved a bill that allows the Knesset to enact with a majority of its members (61) a law that was invalidated by the court due to a contradiction to a basic law: human dignity and freedom (Uzi Baruch, June 2018, Chen Manit, May 2018).

c) An example that clearly illustrates the clause of overcoming is two bills passed by a vote in the ministerial committee for legislative matters in the government recently: the prohibition of putting hamtz into hospitals on Passover, and the expansion of the powers of the rabbinic courts, which will allow them to discuss as arbitrators in civil disputes when the Halacha is a candle to their feet. Women will be hurt by such a move where only men sit as judges. And in addition, the ultra-Orthodox would like to receive a blanket exemption from conscription (which will probably be invalidated by the High Court) with the help of the overcoming clause.

5) Judicial activism

Its meaning: the court takes an active part in determining the legal norms in the country, and its role is not limited to providing an interpretation of the law. In practice, the court audits the executive authority (the government) and the legislative authority (the Knesset) and sometimes will also intervene in their decisions.

Some see the annulment of a decision of a lower court, such as the district court, by a higher court, such as the Supreme Court, as an act of judicial activism.

Prof. Yuval Shani (2019) claims that the court is not an activist. According to the data, he claims that between the years 1995-2018, the High Court invalidated 0.5% of the laws enacted by the Knesset. That is, only 18 laws out of about 3,400 laws passed during that period.

What might be the consequences of a legal reform/revolution on life in Israel?

The fundamental basis and principles of the democratic regime which is based on a system of checks and balances, which is the principle of separation of powers in Israel - will crack.

This refers to the three authorities: The legislature (the Knesset), the executive (the government) and the judge (the court).

A real threat will apply to this separation, in that the executive authority will de facto control the judicial authority. There is a very reasonable fear of religious coercion, for example, in institutionalizing alternative partnerships, protecting vulnerable populations according to the Human Dignity and Freedom Law 1992, since the legal system will be toothless and will not be able to protect vulnerable populations from government decisions.

In conclusion:

The President of the Israel Supreme Court, Honorable Judge Grunis, claimed that in Israel everyone claims deprivation before the legal system, this is due to a lack of adequate representation of gender relations, within the Supreme Court, for example, where 15 judges are named - the Mizrahim claim "for the second Israel", while the Ashkenazim They will claim that their punishments will be made more severe so that they will "be seen and be seen".

The ultra-orthodox will claim a lack of representation in the legal system and hence a deprivation in the matter of the law. The members of the minorities will claim an inherent deprivation of over 70 years, and more.

If so, in order to reduce the legitimacy problem of the courts - there is no escape, in my opinion, from a change in the legal courts in Israel.

I agree with the fact that the court in Israel became, from the eighties of the last century, extremely influential, and as a leader in instilling different social-cultural concepts, in a country with different cultures with a group of Jews who came and built the State of Israel from over 100 postcards.

Those who oppose the proposed reform will describe it as a "regime coup". The coalition will claim that Supreme Court President Aharon Barak is the one who carried out a regime coup here, in the 1990s, when he coined the term "all justice" and thus activated "judicial activism", as I mentioned.

The Supreme Court has become a leading and dominant force in Israel: In 1992, in the enactment of the two fundamental laws "Human Dignity and Freedom" and "Freedom of Occupation", to which the idea of ​​the "Constitutional Revolution" was attached. In this constitutional revolution in Israel, a process of expanding judicial review of Knesset laws began to take place, following the enactment, in 1992, of two basic laws: "The Basic Law on Human Dignity and Freedom", and the "Basic Law on Freedom of Occupation". These basic laws are intended to be part of the future constitution of Israel.

Change is needed! but…

And who is to blame for the situation?
The same Knesset and the same legislators who were unable to make decisions for political reasons of one kind or another, and threw everything at the door of the Supreme Court. The Knesset contributed to fixing this situation. So what to complain about?

In my opinion, a change is needed! that's acceptable.
But, as mentioned, it is recommended to analyze, test and make a change that includes the consent of both the coalition and the opposition in a slow process.

There is room for changes in the magnificent legal system of the State of Israel, but any change must be gradual with a pilot, in a fair and orderly, balanced and comprehensive procedure. And most important of all: after comprehensive staff work and rational decision-making, while consulting with all the relevant functions, all this against the background of the fact that dramatic regime changes affect the democratic characteristics.

Let's hope and wish that the negotiations between the coalition and the opposition in Israel will be in favor of the people divided in Zion. Public protest is acceptable. Verification and refusal to serve the state is not acceptable.
And in the building of Zion Nunham.

Contact Chai here: At watsapBy email

Dr. Jacob Rob
Dr. Jacob Rob
Dr. Jacob Rob - a restless retiree

Articles related to this topic

2 תגובות

  1. Israel wants democracy - the legal sector, which includes 80,000 lawyers linked to the top of the economy, academia, politics, the military and the media, demand 'not to move our cheese or we will burn the club down'.
    Burn, the cheese will move and the extreme jurisprudence of the High Court as an anti-democratic super-legislator will be stopped.

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