Israel needs judicial reform. Courtesy | Wikimedia Commons

Israeli Prime Minister Benjamin Netanyahu pulled the plug on his judicial reform after months of rampant protests and union strikes, as well as rebellion from within his coalition government. Netanyahu will need to negotiate and compromise with opposition parties if he wants to keep the country’s unelected judiciary accountable. 

Netanyahu’s contentious relationship with the judiciary has complicated the odds of a successful compromise with opposition parties. The prime minister faces an ongoing criminal trial relating to corruption charges, which taints the public’s perception of the sincerity of his conviction toward meaningfully changing the judiciary system. To secure change, he will need to make the best case to check judicial overgrowth. 

Reform is needed to return popular control over the appointments process and constitutionalize the Israeli Supreme Court’s jurisdiction. 

Part of the issue is that Israel does not have a written constitution like America, which has left several areas of ambiguity, especially in its legal system. Courts in Israel base their decisions on British Common Law, evolving case law and judicial precedent, and the country’s basic laws, which give quasi-constitutional powers to the branches of the government. 

Under this system, the elected government does not appoint judges. Instead, a nine person committee unilaterally decides all judicial appointments. This committee is made up of three current supreme court justices, two members of the Israeli Bar Association, the justice minister, another minister from the government, and two members of the Knesset, Israel’s parliament. For all courts, except for the Supreme Court, the committee can approve applicants by a simple majority. For potential Supreme Court nominations, the committee must approve the nomination with a super majority of seven votes, if all members are present.

Not only is this system of appointment undemocratic, if the Supreme Court Justices vote as a block they can veto any nomination that might dissent with the current ideological makeup of the court. Netanyahu and his allies have pointed out these inconsistencies as evidence of entrenched minority rule insulating itself from the popular will. The Prime Minister’s reforms aimed to expand the judicial selection committee from nine members to eleven and increase the representation of elected members of the Knesset so that they form a majority on the committee. 

Another issue with the Israeli legal system is that courts make no distinction between legal, which includes criminal and civil proceedings, and policy questions on military directives or political appointments. Additionally, parties can bring suits against the government or other groups without standing — or a direct personal stake in the outcome. Israel’s Supreme Court has stepped in to fill this ambiguity by basing its decisions on whatever it determines is a “reasonable” argument. 

This creates odd legal situations where the Supreme Court blocked Netanyahu from closing the Palestine Liberation Organization’s office in Jerusalem because parliamentary elections were scheduled months away in 1999. Meanwhile, in 2022, the court allowed Prime Minister Yair Lapid’s government to yield parts of Israel’s territorial waters to Lebanon five days before an election. Netanyahu’s judicial reform attempted to resolve these inconsistencies by allowing Parliament to overrule the Supreme Court’s decrees by a simple majority vote, which the public viewed as a power grab. 

Part of the issue is that while the proposed reform would control the effects of a politicized judiciary, it fails to hit at the fundamental issue at play. To resolve this ambiguity within the Israeli legal framework, Israel needs legislation that lays out the clear boundaries of the court’s jurisdiction when answering the legal and policy questions. One possible solution is establishing a written constitution. 

If Netanyahu desires reform, a written constitution could build the consent in the Knesset needed to establish the clear legal limits of each political institution while enshrining the political values of a growing multicultural jewish society. That way the different political factions in the country could come together, rather than attempting to ram through unilateral change through a slim majority.