Efraim Podoksik

They’ve forgotten why they want judicial reform

The government is using the right’s valid criticisms of the Court as a smokescreen for reforms that hurt their own voters
A vote on the reasonableness bill at the Knesset. Jerusalem. July 24, 2023.(Yonatan Sindel/Flash90)
A vote on the reasonableness bill at the Knesset. Jerusalem. July 24, 2023.(Yonatan Sindel/Flash90)

Something alarming is occurring within the legislative process of judicial reform. There is a growing disconnect between the rhetoric espoused by the reform’s proponents and the actual actions being taken. While they claim that the reform aims to moderate judicial intervention in politics, the practical outcome is undermining the independence of the judicial branch and granting politicians undue influence over judicial affairs. Additionally, they assert that the content of the legislation has been softened, but in reality, only the pace of legislation has slowed while the extreme content remains unchanged.

There are legitimate reasons to reconsider the relationship between the branches of government in Israel and to limit the involvement of the Supreme Court in political matters. Ideally, such amendments should be decided through broad consensus from a constitutional standpoint. However, even without consensus, the government could have pursued legislative changes that serve the public’s best interests. Unfortunately, as the legislative process has unfolded, a concerning pattern has emerged. The government has shown a willingness to exclude sections of the reform meant to address criticisms of the Supreme Court but has staunchly fought to retain sections that would result in the complete dismantling of the judicial system and undermine the rule of law.

For instance, there are valid concerns regarding the significant influence Supreme Court justices have over judicial appointments. In recent public debates, experts from across the political spectrum have proposed various models for the composition of the Judicial Selection Committee to make it more diverse and representative. These proposals, endorsed by both proponents and opponents of judicial activism, have not been adopted by the legislators. Instead, the coalition has displayed unwavering determination to maintain control of the Committee, ensuring politicians from the ruling coalition or those under their sway have significant influence. Such an arrangement would undoubtedly flood the entire judicial branch, including magistrate courts, with unqualified or highly ideologically extreme candidates. 

A similar pattern is evident in the attempt to revoke the reasonableness doctrine. While there are valid reasons to limit the Supreme Court’s ability to intervene in political decisions, the coalition has chosen an entirely different course of action. They seek to exempt ministerial decisions from the reasonableness doctrine, effectively eliminating effective judicial review over administrative decisions. This change will have adverse effects on Israeli society as a whole, but it will disproportionately harm residents in the country’s periphery. Consequently, the legislation will come at the expense of the public who supports the coalition. 

We must also consider the case of the law regarding the Israel Bar Association. Arguments against the existence of such a statutory guild are compelling, suggesting its dismantling. However, rather than liberating the public from this guild, the proposed legislation would establish a “voluntary” body under the control of coalition politicians, particularly the minister of justice.

These facts cast a somber shadow over the intentions of the reform’s proponents. If they genuinely had the public’s best interest in mind, they could have introduced legislation that would have garnered support from the majority, without compromising the right’s position on the need to curb the politicization of the Supreme Court. However, this is not the path they have chosen. Initially, this choice could have been attributed to negligence or a lack of attention, but such explanations are now implausible. Their persistent insistence on retaining the most damaging sections of the legislation and their willingness to take political risks and endure public backlash demonstrate that the entire initiative was designed to advance these problematic clauses. The occasional criticism of the politicization of the Supreme Court serves merely as a smokescreen, intended to gain support from right-wing voters who will be the first to suffer from the consequences of this reform.

It is conceivable that Prime Minister Netanyahu may have been deceived by the proponents of the reform, believing it to serve the public interest or considering the proposed changes insignificant. However, today the truth is clear. Soon, the leaders of the Likud party will have to decide whether they will bow to the dangerous interests of the extremist wing of the coalition or prioritize the public interest and the interests of their party’s voters.

About the Author
Efraim Podoksik is a professor of political science at the Hebrew University of Jerusalem.
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