Israel: The IBA is profoundly concerned with the proposed reforms to the legal system that would jeopardise the Rule of Law
Statement by the President of the International Bar Association Almudena Arpón de Mendívil Aldama
The International Bar Association (IBA) is profoundly concerned with the proposed reforms to the legal system in Israel, which would seriously undermine the independence of the judiciary, including the Supreme Court, and dismantle legal checks on executive power. Israel has been recognised as a substantial upholder of the Rule of Law with a senior judiciary which is much admired globally. These changes will wholly undermine that proud position.
The proposed legislative reforms were introduced in January 2023 by the Israeli Minister of Justice, Yariv Levin. If passed, they would have the result of amending the composition and functioning of the judicial appointment committee to confer a dominant position to representatives of the government; enabling the Knesset (Israel’s parliament) to override decisions of the Supreme Court; impairing the Supreme Court’s ability to review governmental decisions; and severely undermining the independence of legal advisors to the government ministries. Furthermore, consideration has been given to a proposal to strip the Israeli Bar Association of its function of licensing of lawyers, thus posing a threat also to the independence of the legal profession.
The Rule of Law is an inherent component of modern democracies. At its core it establishes the principle that no one is above the law. It also provides protection from the arbitrary use of power. On an institutional level, this translates into guarantees of the independence of the judiciary and the monitoring of the exercise of executive power. Indeed, while there is no single model for democracy and every state has its own ways of establishing checks and balances, there are certain elements that are foundational to the separation of powers. This is particularly so for a state like Israel, with a unicameral legislature represented by the Knesset and a parliamentary system that can lead to the Executive, namely the government of the day, having full control over the Knesset. Without a second chamber exercising control, and without a written constitution, the restraints on the majority are mostly entrusted to an independent judicial system. This is why the Israeli Supreme Court plays a pivotal role in constraining the executive from a potentially negative use of power.
The proposed reforms would have the effect of completely dismantling both the external and internal checks on the executive, through the independent judiciary and the independent legal opinions of the Attorney General and of the legal advisors to government ministries. These reforms will curb legitimate oversight of the actions of government and the Knesset, leaving the Executive free to use its power in a potentially arbitrary and discriminatory manner.
Specifically, under the proposed legislation:
- Politicians will have a dominant position on the committee that appoints judges and the President of the Supreme Court
Amendments to the Israel’s Basic Law: The Judiciary (1984) have been put forward, to introduce changes in the composition and functioning of the judicial selection committee, which is entrusted with appointing, promoting, and dismissing judges.
The committee is currently composed of a combination of two ministers, two members of the Knesset, two representatives of the Israeli Bar Association, and three Supreme Court judges. The reform aims to change the composition of the committee by removing the two representatives of the legal profession and replacing them with government representatives. In this way, the government would secure for itself a majority of six out of nine committee members. This will grant the government an unchecked power of appointment, which extends also to Supreme Court judges. While a reinforced majority of seven out of nine members is currently required to appoint Supreme Court judges, the proposed amendments would reduce it to a simple majority.
Moreover, the proposed law introduces public hearings for potential Supreme Court judges before the Knesset Constitution Committee, offering an opportunity to test each candidate’s views on topics of interest to the government.
The proposal further includes the abolition of the seniority system for the appointment of the President of the Supreme Court, replacing it with a discretionary appointment from the government-dominated judicial selection committee, with a tenure of six years. This may open doors to appointments based not on professional criteria, but on the candidate’s loyalty to the governing party.
While the Supreme Court of Israel has always been recognised internationally as being a court of high principle and adherence to the Rule of Law, the proposed reforms could seriously put this honourable reputation at risk. Potential government inference, through the judicial appointment committee, would diminish what is a carefully calibrated judicial function. All the above proposals are in flagrant violation of the United Nations Basic Principles on the Independence of the Judiciary and the IBA Minimum Standards of Judicial Independence, which set out the key elements to secure the independence of the judiciary. These principles explicitly include proper appointment and promotion procedures ‘vested in a judicial body in which members of judiciary and the legal profession form a majority’ or by a non-judicial body but only when ‘by long historic and democratic tradition, judicial appointments and promotion operate satisfactorily’ There should be no influence of the Executive over judicial functions; promotion should be based on objective factors; and there should be security of tenure.
These are safeguards which the suggested reforms will remove.
- The Parliament will be able to override decisions of the Supreme Court.
One of the core functions of the Israeli Supreme Court is to exercise control over legislation to ensure that it is not in contrast with the provisions of the Basic Laws. The Basic Laws are quasi-constitutional laws that protect fundamental freedoms in the country and lay down the institutional framework of the State of Israel.
The proposed reform strips the Supreme Court of its ability to exercise its important Judicial Review power. It not only increases the majority required in the Supreme Court to strike down an unconstitutional law, but it also introduces an overriding clause that allows the Knesset to re-enact a law that has been struck down by the Supreme Court. With a vote of 61 members of the Knesset, which is the prevailing Knesset majority, it will be possible to override a Supreme Court decision.
The essential function of Judicial Review is that it protects people from the unfair exercise of power and provides avenues to justice for those most vulnerable to abuse. Under the current legal system, the Supreme Court may overrule governmental decisions when the discretion utilised by Government officials does not fall within a ‘margin of reasonableness’. The proposed reform will abolish the ‘reasonableness’ standard in administrative review, thus curtailing the Supreme Court’s power to carry out judicial review over the decisions of the government, ministers and other executive agencies that appear highly unreasonable.
One of the proposals goes even further by giving the Knesset the power to decide that a law is immune from Judicial Review. This would completely cripple the Supreme Court’s oversight of a range of laws, even where the laws transgress the rights of minorities or contravene international conventions.
- The independence of legal advisors to the government ministries will be severely undermined.
Currently, legal advisors to government ministries are appointed by professional tenders and subject to the authority of the Attorney General. They provide binding legal advice on the legality of ministries’ policies and actions, therefore their independence from the ministries that they advise is crucial to the discharging of their duties.
The proposed reform would enable the Director General at a Ministry to appoint legal advisors and remove them from office. This will significantly impair the legal advisors’ autonomy, thwarting the purpose of their gatekeeping function. It will also consequently impair the work of the Attorney General’s office, as it relies on the monitoring exercised by the legal advisors at the government ministries.
Moreover, the proposal aims to transform the advisors’ and the Attorney General’s binding legal advice into mere opinions that can be disregarded by the government at will. This means the government would be able to proceed with planned actions even when advised that they are against the law.
The IBA has also been informed that consideration is being given to a proposal to strip the Israeli Bar Association of its function of licensing of lawyers and to place the regulation of the profession within the Ministry of Justice. The ability to practice should not be dependent on any political institution. While it is universally recognised among democracies that the independence of the judiciary is a fundamental precept for the Rule of Law, the vital importance of an independent legal profession as the bedrock for a free and democratic society often remains unmentioned. It is essential to this end that access to the legal profession remains anchored on purely professional assessments and disciplinary proceedings against lawyers are brought before impartial committees of the appropriate lawyers’ associations, in accordance with the UN Basic Principles on the Role of Lawyers and the IBA Standards for the Independence of the Legal Profession.
While every system can at times benefit from reforms, the proposals detailed above are deeply alarming as they all move in the same direction, stripping Israeli institutions of their ability to constrain executive power. The IBA expresses its serious concerns over the impact that the reforms could have on the constitutional framework of the State of Israel. If passed, similar legislation would place Israel outside of the boundaries of modern democracies, with serious consequences for its citizens and its relationship with the international community. The IBA, therefore, urgently calls for the Israeli authorities to abandon the proposed reforms and to reaffirm Israel’s clear commitment to the Rule of Law.
Notes to the Editor
- Related material:
Israel: IBAHRI condemns new government plan to curb Supreme Court powers
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