SLS’s Allen Weiner Discusses Israel’s Contentious ‘Judicial Overhaul’ Legislation

This week, Israel’s Knesset passed a key portion of the highly contentious judicial overhaul legislation initially proposed by Prime Minister Benjamin Netanyahu’s administration in January. According to Netanyahu, the provisions limiting the power of the country’s Supreme Court are necessary to restore the balance of power between the branches of government, as the judiciary has allegedly gained too much power in recent decades. Meanwhile, protestors have massed in the streets for months, arguing that the package of court-limiting laws are designed simply to consolidate power in Netanyahu’s right-wing government and ultimately threaten Israel’s status as a democracy.

Allen S. Weiner
Allen S. Weiner, senior lecturer in law and director of the Stanford Program in International and Comparative Law and the Stanford Center on International Conflict and Negotiation

Here, Stanford Law School Senior Lecturer Allen Weiner, JD ’89, director of the Stanford Program in International and Comparative Law and director of the Stanford Center on International Conflict and Negotiation, discusses these developments in Israel, including how the legislation may impact Israel’s relationship with the United States. 

What does the judiciary-limiting law passed in Israel this week seek to do and why is it significant?

This law embodies one element of a larger package of “judicial overhaul” legislation that Israel’s right-wing government, led by Netanyahu, has proposed. The law passed by the Knesset this week would prevent Israel’s High Court of Justice (as the Israeli Supreme Court is known when hearing direct petitions against governmental actions) from relying on the so-called “reasonableness” doctrine—essentially a common law doctrine with roots in British law—as a basis for invalidating governmental actions. The doctrine serves as a basis for invalidating decisions made by the Israeli cabinet, individual government ministers, and certain other elected officials. The reasonableness doctrine has, in some cases, also been used to invalidate governmental appointments. This doctrine, it is important to note, is not available to review or invalidate legislation passed by the Knesset. It is, in a sense, an administrative law doctrine.

Passage of the law is significant because it eliminates an important check on decisions by governmental actors that are arbitrary, or that are motivated by political considerations rather than the public interest. Passage of the law also presages the government’s commitment to move forward with other aspects of the proposed “judicial overhaul” plan, some of which would have even more far-reaching implications than the law passed this week.

What can Israel’s executive branch likely do now that it arguably wouldn’t have been able to do before the passage of this law? Will this impact settlements in the West Bank and other controversial policies that Netanyahu’s administration has favored? 

The reasonableness standard has not been used extensively by Israeli courts. Some of the most controversial applications of the doctrine have been in the area of appointments. For example, the Israeli High Court this year blocked the proposed appointment of Aryeh Deri, the leader of the Shas party, as health and interior minister because he had previously been convicted of tax evasion, corruption, and bribery.  

Some other prominent examples of the reliance by the High Court on the reasonableness doctrine include a 1986 case, in which the court invalidated a decision by the Minister for Religious Services to cancel the appointment of a woman to a religious council on the grounds that women cannot serve as religious council members. The Court also relied on the reasonableness doctrine in 2018 to invalidate a decision by the Defense Minister to bar Palestinians from participating in a Remembrance Day ceremony.

Although I know of no cases in which the reasonableness doctrine itself has been used to block government approvals of the expansion of West Bank settlements, some critics contend that a primary motivation of the current Israeli government’s efforts to overhaul the judiciary is to facilitate settlement expansion and ultimately annexation of the West Bank, or at least parts of it.

SLS’s Allen Weiner Discusses Israel’s Contentious ‘Judicial Overhaul’ Legislation

Aida Touma-Sliman of the left-wing Democratic Front for Peace and Equality Party is quoted in Time Magazine as saying that the primary focus for the judicial overhaul is “the annexation and controlling of the West Bank and the Palestinian territories.” The government “need[s] the Supreme Court to be neutralized and to not criticize or to judge the policies and decisions they are going to make.”  Ten years ago, the current Justice Minister, Yariv Levin—then a member of the Knesset—told a conference hosted by the Israeli Sovereignty Movement that a “change in the legal system is essential because it will allow us, and will make much easier for us, to take tangible steps on the ground that strengthen the process of advancing sovereignty” throughout what right-wing Israelis consider to be the entire land of Israel, including the West Bank.

Some Israeli commentators also speculate that with the elimination of the reasonableness doctrine, Prime Minister Netanyahu may fire the country’s current Attorney General, who is responsible for leading the current bribery cases against him, and replace her with someone who will discontinue the Netanyahu prosecution.

Aside from the “reasonableness” provision, which passed this week, what other provisions to limit the judiciary are being proposed and what is likely to happen in that regard in the coming weeks or months?

Perhaps the most significant aspect of the proposed judicial overhaul is one that would permit Israel’s legislature, the Knesset, to override a decision by the Israeli High Court to invalidate a law, including on grounds that a law violates Israel’s so-called “Basic Laws.” (Israel does not have a written constitution, but the Israeli High Court can invalidate “ordinary” legislation if it concludes that such legislation is incompatible with the Basic Laws.) Some of the Basic Laws provide for the protection of fundamental civil liberties. Allowing the Knesset to override a High Court decision invalidating legislation would, in effect, erase judicial review and eliminate any judicial checks on majoritarian rule. Last month, Prime Minister Netanyahu stated that the government was abandoning efforts to pursue this “override clause,” although some members of the governing coalition have stated that they do not believe the proposed “override” law is “off the table.”

The government’s proposed judicial reforms would also change the process by which Israeli Supreme Court judges are appointed. It would diminish the role of independent actors on Israel’s Judicial Selection Committee, including judges and Bar Association members, and would ultimately leave the governing coalition in the Knesset with the authority to appoint Supreme Court judges.

Is there merit to Netanyahu’s argument that the so-called reforms are necessary because the judiciary has accrued too much power over public policy and that he’s simply trying to restore a balance of power? 

There is, of course, no formula for determining, in any given society, what the proper balance is between the will of the majority, acting through the legislature, and the role of the judiciary in providing counter-majoritarian safeguards to uphold the rule of law and to protect minority rights. That said, if all elements of the government’s proposed judicial reform were to be adopted, it would be hard to characterize Israel as a country where there is a balance between the government and the judiciary. The government (effectively a combination of the executive and legislative branches in a parliamentary system) would be entirely dominant.

Those opposed to the new laws say these shifts imperil Israel’s status as a democracy. Do you agree?

If one thinks of democracy as simply the reflection of the will of the majority, eliminating judicial constraints on actions taken by a democratically-elected government would not necessarily be seen as imperiling democracy. But for those of us who believe that democracy is more than majority rule—that it also entails guarantees of fundamental rights, and protections against legislation targeting vulnerable minority groups––the proposed judicial overhaul in its entirety would certainly undermine democracy.

How are these developments likely to impact the United States’ relationship with Israel?

The judicial overhaul is a signature initiative of a government that has demonstrated its interest in advancing a strong sense of Jewish nationalism, including expansion of settlements in the occupied Palestinian territories and ultimately annexation of at least part of the West Bank.  Moreover, there are important actors in the current government who have demonstrated racist and illiberal views. The weakening of the judiciary that the Israeli government seeks to bring about can be expected to lead to an expansion of policies that are antithetical to the commitment of the United States to the two-state solution.  For many observers, the pursuit of the judicial overhaul more fundamentally represents growing illiberalism in Israel and a deepening rift in the values that have historically tied the two countries together. Given how important a sense of shared values has been to the relationship between the United States and Israel, such a rift will inevitably strain that relationship.

What does all of this mean for Israel’s Arab citizens? 

In principle, the elimination of a basis for judicial scrutiny of governmental action could lead to the adoption of measures that discriminate against Israeli Arabs. Yuval Noah Harari has warned, for instance, that the new constraints on the Israeli High Court mean that “the government could … rig future elections, for example by banning Arab parties from participating — a step previously proposed by coalition members.”

Other observers, in contrast, argue that the effects of the new law may be negligible because the Israeli High Court has not actively defended the rights of Arab Israelis.  In the words of human rights lawyer Abeer Baker, “For Palestinian citizens of Israel, the judicial system has never been seen as one that offers any protection against discriminatory laws and a system that privileges one group of people over another.” 

Senior Lecturer Allen Weiner is director of the Stanford Program in International and Comparative Law and director of the Stanford Center on International Conflict and Negotiation. He also co-leads the Stanford Humanitarian Program. Before joining the Stanford Law School faculty in 2003, Weiner served as legal counselor to the U.S. Embassy in The Hague and attorney adviser in the Office of the Legal Adviser of the U.S. Department of State. He has expertise in wide-ranging fields such as international and national security law, the law of war, international conflict resolution, and international criminal law (including transitional justice). His scholarship focuses on international law and the response to the contemporary security threats of international terrorism, the proliferation of weapons of mass destruction, and situations of widespread humanitarian atrocities.