Nowadays many things are being commented about the changes on the Supreme Court of Israel that Benjamin Netanyahu’s Minister of Justice, Yariv Levin, plans to make. However, to be able to understand what to expect, we need to talk a little bit about its history.
First of all, the Supreme Court of Israel has an historical influence of British law on the Israeli legal system, as it was a British empire colony until 1948, when Israel declared its independence. At this time people were very used to the British way of judging, and the Israeli legal system continued following the Common Law. Although, nowadays Israeli law is a mixed jurisdiction which means that it has been influenced by Civil Law, it is also possible to see the combination of codified law and precedent-based law. Obviously, the Supreme Court creates the most important rulings that create the de-facto law of the land, in cases which require interpretation of the laws.
What is the role of the Supreme Court in Israel?
Another important point we need to understand is that The Supreme Court is also the High Court of Justice (Bagatz) which hears claims of citizens against the state, human rights, constitutional issues, questions of religion and state that are always sensitive in the Israeli public, such as conversions to Judaism, but it is also the final court to appeals. These are two different institutions in one same structure. However, they work separately, even being in the same building, with the same judges.
Israel has a different legal system from other countries, such as Brazil, where there is one court which is the Supreme Court and another that is the Justice Supreme Court. There are two different institutes, one is the STF (The Supreme Court) which is the final court to appeal and this is the court that judges constitutional disputes, and the other is STJ (The Justice Supreme Court) which is responsible for standardizing the interpretation of Brazilian Federal Law throughout Brazil.
How are the Supreme Court Judges appointed?
The Israeli Supreme Court is composed of 15 Judges, 2 Registrars and one president who are nominated by the Judicial Selection Committee; today the president is Esther Hayut. Also, the judges have to leave the office when they complete 70 years old, unless they resign or are removed before. Therefore the judges in the Supreme Court are officially appointed by the President of Israel and must meet certain criteria, such as previous experience as a judge or year of legal practice.
We must emphasize that the judges who are appointed by the President of Israel, they came from a list of names that the Judicial Selection Committee already selected, which is composed of nine members, that is: 3 Supreme Court Judges – including the President of the Supreme Court – 2 cabinet ministers – one of them has to be the Minister of Justice – 2 knesset members and 2 representatives of the Israel Bar Association.
ESTHER HAYUT – President of the Supreme Court
Esther Hayut became the president of the Supreme Court on October 26th, 2017 and she will be in office until October, 2023, when she will be 70 years old. Moreover, she attended law school at Tel Aviv University and graduated in 1977. After her studies she stayed an associate lawyer until 1985.
In March, 1990, she was appointed as a judge in the Tel Aviv Magistrate Court, in 1996 she was appointed to the Tel Aviv District Court and in 2003 she was appointed to the Supreme Court. In May, 2015 Hayut was appointed Chairperson of the Central Election Committee for the 20th Knesset.
After all, in 2022, Esther was awarded by Forbes as one of the women leading the way throughout Europe, the Middle East and Africa.
On January 12th, 2023, Esther Hayut gave a speech at a conference in Haifa and there she “denounced the new government’s plan to radically overhaul Israel’s judicial and legal system, saying it would deal a “fatal blow” to the country’s democratic identity.(…)”. She continue talked about “(…) the sweeping changes to the legal system would fatally undermine judicial independence, give the Knesset a “blank check” to pass any legislation it pleases — even in violation of basic civil rights — and deny the courts the tools needed to serve as a check on executive power.(…)”.
YARIV LEVIN – Israel’s Minister of Justice
Yariv Levin graduated at LL.B in the Hebrew University and there he began part of the Likud. After college he worked as a lawyer in the field of civil-commercial law.
He has been part of the Likud party since 1997. His first time on the Knesset was in the elections of 2009 to the 18th Knesset. At this time, he was elected to represent the central region. In 2013 he was re-elected. During the activity in the 20th Knesset, Prime Minister Netanyahu appointed him as Minister of Public Security, in 2015 he was appointed as Minister of Tourism and in 2018 he was appointed as Minister of Aliyah and Integration.
He was twice (activity 23rd and 25th Knesset) elected as Speaker of the Knesset, although in the activity in the 23rd Knesset he was replaced by Mickey Levy.
Nowadays, he is Netanyahu’s Minister of Justice and he is trying to do a lot of changes on the Judicial System.
THE JUDICIAL REVOLUTION
In the first place, it is extremely important to talk about the Judicial Revolution that happened in 1992 made by Aharon Barak, a Supreme Court judge who in 1995 became the President of the Supreme Court. This reform was based on the newly passed “Basic Laws” which protect Human Dignity and Liberty. The Supreme Court claimed authority to strike down a Knesset legislation if they understand it is unconstitutional, against the basic laws. Since then, a few legislations have been declared unconstitutional by the Supreme Court.
Levin believes that the Judicial Reform which happened in 1992 needs to be changed because he thinks it gave to the judges of the Supreme Court a lot of power. Yariv Levin said that: “We go to the polls, vote, and time after time, people we did not elect decide for us (…)”, at a conference in the Knesset in order to try to convince the parliamentarians that the Supreme Court has a lot of power and it has to change. He is a critic of the Supreme Court and wants to give politicians a greater role in the appointment of judges.
In January, 2023, he started to talk about the governmental plan for a legislative overhaul of the country’s judicial system. This plan has a goal to weaken the Supreme Court of Israel and it will be a way, in his opinion, for the government to have control over the Judicial Selection Committee. So, in that way, the Judicial Selection Committee which today is an institution to charge judges with the change in the basic-laws will be able to limit the authority of the Supreme Court in the sense of judicial review.
Also if this Judicial Revolution is approved it will have changes in the members of the selection committee which could result in a new election of different and more conservative judges.
Large demonstrations and huge concerns raised fastly among Israeli people have been a direct consequence of Levin’s plan getting public.
Another point of his proposals is that the lawmakers will be allowed to pass laws that the high court has struck down and in effect deemed unconstitutional and the 120-seat on Knesset will be able to override Supreme Court decisions with a simple majority of 61 votes, it is nominated by “derogation clause”.
The Judicial System can be weakened by Levin’s ideology. In this sense, we can see that it can be a problem because when one of the three powers (legislature, judiciary and executive) has more power than the others the democracy can be at risk.
Critics argue that Levin’s proposals pose a risk to democracy by giving too much power to one of the three branches of government.
As a result of this, after every Shabbat Israeli people are doing demonstrations in Tel Aviv and other cities to show to the government that they don’t agree with this plan. Those demonstrations have been very big.
As a consequence of these changes, many experts are questioning Israeli Democracy and if it would be continuing as it was or not.
We could question it, if these changes really happen, could Israel still be called as the only democracy of the Middle East?