Already Sparking Outrage, the Israeli Right’s Plan to Trample the Judiciary Is Only in Phase One

Justice Minister Levin’s plan to overhaul Israel’s judiciary has sparked widespread public resistance. But the steps that prompted the public protest are just the first phase of the prime minister and justice minister’s full plan, the details of which have been obtained by Haaretz

Michael Hauser Tov
Michael Hauser Tov
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Justice Minister Yariv Levin and Prime Minister Benjamin Netanyahu, earlier this month.
Justice Minister Yariv Levin and Prime Minister Benjamin Netanyahu, earlier this month.Credit: Ohad Zwigenberg
Michael Hauser Tov
Michael Hauser Tov

Two weeks ago, when Justice Minister Yariv Levin unveiled his government’s plan to weaken Israel’s judiciary, he told the news conference, “I’d like to present the main [aspects] of the first phase of the reform which are aimed at addressing the most urgent points.”

Since then, the plan has sparked widespread public protests that culminated on Saturday evening with demonstrations around the country attended by more than 130,000 people. But as Levin noted, the steps that prompted the public protest are just the first phase of the prime minister and justice minister’s full plan, the details of which have been obtained by Haaretz.

Protesters demonstrate in Tel Aviv against the far-right government's plans for judicial overhaul on Saturday night.Credit: Tomer Appelbaum

The plan being advanced by Prime Minister Benjamin Netanyahu’s government consists of four phases, and the cabinet’s immediate goal is the approval of the first phase – presented by Levin at his news conference – by the end of the Knesset’s current winter session, which ends just before the Passover holiday.

Details regarding the subsequent phases were recently presented to a limited number of cabinet ministers at a meeting together with the prime minister at his Likud party headquarters in Tel Aviv. What appears below are the main provisions of each phase presented at that meeting.

Phase 1: The main points of the plan

The plan’s first phase was presented at Levin’s news conference and is being advanced through a series of bills that the justice minister is planning to submit to a Knesset vote in the coming weeks.

As a practical matter, this phase includes four significant steps: legislating an override provision that would enable the Knesset to pass legislation a second time – by a vote of 61 lawmakers in the 120-seat Knesset – that had been invalidated by the court; eliminating the courts’ reasonableness standard – one of the grounds on which last week the court invalidated the appointment of Arye Dery as interior and health minister; strengthening the power of the governing coalition on the Judicial Appointments Committee; and weakening the status of the legal advisers at the government ministries.

It’s in this phase that the most significant changes in the justice minister’ overall plan appear – those constituting the foundation for implementing the other phases. Levin added this preliminary phase to the others so that even if it encounters bitter public criticism and only this phase is approved, the major aspects of the change that he’s seeking to the judicial system will be carried out.

Phase 2: Basic Law on Legislation and Repeal of the Basic Law on Human Dignity

At the heart of Phase 2, which Levin and Netanyahu plan to legislate during the next Knesset session, will be a basic law on legislation. The bill is due to regulate the status of laws in the country as well as the capacity of the High Court of Justice to strike them down. In addition, the basic law is expected to regulate the Knesset’s ability to override the High Court’s decisions striking laws down.

The other provisions of the proposed Basic Law on Legislation would be based on an identical bill that Levin introduced in the last Knesset. The bill would make the process of legislating basic laws more complex and more difficult. It’ll require that each proposed basic law be voted on four times – three times, as it’s now the procedure in the Knesset in which it’s introduced, but also a fourth time in the following Knesset.

Justice Minister Yariv Levin, earlier this month.Credit: Emil Salmon

In addition, the Basic Law on Legislation is expected to target the standing of the Basic Law on Human Dignity and Liberty as a basic law. According to the plan, the new basic law would provide that any current basic law that was passed by a plurality of less than 61 votes would lose its status as a basic law and automatically become a “regular” law.

Therefore, if this stage is in fact approved, the Basic Law on Human Dignity and Liberty – which has provided the basis over the past 30 years for the most of the disqualifications of legislation by the High Court and for its reasoning – would immediately become a regular law. That’s because when it was legislated in 1992, it passed by a vote of 32 in favor.

Demonstrators in Jerusalem on Saturday, lifting banners against Levin's plan.Credit: Ohad Zwigenberg

At the same time, Netanyahu and Levin are considering passage of a new basic law during this phase that would deal with human rights and as a practical matter replace the existing law, which would lose its status as a basic law.

The most important part of the current basic law is its “limitation provision” – the provision on which the legal doctrine is based that permits laws to be struck down in the High Court. The content of the new law is not expected to include this provision and therefore, as a practical matter, it would bar the High Court justices from basing their disqualification of laws on the new basic law.

Phase 3: Justiciability and Narrowing the Right to Standing

According to the plan, the major move that’s expected to be advanced at this stage is narrowing the right to standing by Israeli citizens to have access to the High Court of Justice.

In recent decades, the Supreme Court has expanded the right of any citizen to file High Court petitions challenging the decisions of government authorities. The Netanyahu government is seeking to pass legislation that would substantially narrow access to the courts at various levels and most notably restrict the ability of nonprofits and social organizations to file petitions against the state’s decisions.

Levin and Netanyahu intend to advance legislation that would provide a restricted list of grounds upon which an individual would be able to petition the High Court. According to the information obtained by Haaretz, the first condition would be that the petitioner be the main party suffering harm as a result of the steps prompting the filing of the petition.

Originally it was expected that this phase would include the elimination of the reasonableness standard, but Levin chose to move that up to the first phase of the plan. The decision to move it up stemmed in part from the High Court hearing on the fitness of Arye Dery to serve as a cabinet minister and the assessment that he would be disqualified on these grounds.

Phase 4: Splitting the role of attorney general

The final phase of the plan, which is expected to include splitting up the responsibilities of the attorney general, has so far only been presented in general terms, even at the private meetings at which the plan was presented to cabinet ministers. This is as a result of the sensitivity of taking such a step at a time when Netanyahu is on trial for bribery, fraud and breach of trust.

The precise details regarding splitting the attorney general’s role are still not clear, but one possibility is that the cabinet would appoint a chief prosecutor who would be responsible for filing criminal charges against cabinet ministers and Knesset members, authority that’s currently in the hands of the attorney general.

There’s concern that such a chief prosecutor, who would be appointed by the cabinet, would withdraw indictments against the prime minister to “reconsider” them. According to the current law, such a step would apparently require the approval of the three-judge Jerusalem District Court panel hearing Netanyahu’s case.

In addition, Levin is interested in avoiding a linkage between the plan to weaken the judiciary and Netanyahu’s own trial. That would avoid more widespread public protest.

Last week, Haaretz’s Gidi Weitz reported that the ground has already been laid to disqualify Netanyahu from continuing to serve as prime minister after his government power was harnessed in service of his own personal interests. In light of that, a change in the attorney general’s role is liable all the more so to constitute a blatant conflict of interest on the prime minister’s part that could accelerate a decision to disqualify him from continuing to serve as prime minister.

Following those concerns, there are many question marks regarding the plan’s fourth phase, and there’s a possibility that a split in the role would be approved without providing the authority to possibly delay the Netanyahu trial.

Israel's Attorney General Gali Baharav-Miara, in December.Credit: Rami Shlush

To avoid a delay in plans to weaken the status of government ministries’ legal advisers, it was decided not to link such a move to plans to split the attorney general’s role and instead to advance the plan regarding ministry legal advisers in the first phase.

According to the bill on the subject, which has already been presented by Levin, the ministries’ legal advisers would be appointed by ministers heading each ministry as the ministers’ own personal appointments. The legal advisers’ advice wouldn’t be binding on the cabinet ministers and would only be advice by their nature.

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