Ex-chief justice backs partial curb on court oversight if rest of overhaul shelved

Former Supreme Court chief justice Aharon Barak said Sunday that he was prepared to support curbing the top court’s authority to review government policy and ministerial decisions on grounds of reasonableness if Justice Minister Yariv Levin, a leading proponent of the judicial overhaul, doesn’t advance the rest of his controversial proposals to radically remake the justice system.

Speaking during an event at Reichman University in Herzliya, Barak stressed that he was open to judicial reform in principle but firmly opposed the far-reaching proposals backed by Levin and other senior coalition figures.

“I support a reform that adds judges and experts and a reform of the state prosecution. It cannot be that a case like [Aryeh] Deri’s takes many years. The [current] reform proposals harm democracy,” he said, referring to the drawn-out corruption trial of the ultra-Orthodox Shas party leader, which ended last year.

The 86-year-old Barak is seen by many as the figure most responsible for Israel’s judicial changes since the 1990s — many of which the government wants to overturn — and he has emerged as a polarizing figure in the ongoing debate. He is a liberal icon near whose home many right-wing, pro-reform activists have rallied, despite Barak not holding an official position for the past 18 years.

On the reasonableness doctrine — which lets justices overturn government decisions as “unreasonable” — Barak said it was “very important,” but acknowledged that it could be limited under agreements reached in compromise talks between coalition and opposition representatives hosted by President Isaac Herzog.

Barak specified that he would be willing to accept restrictions on the use of reasonableness over government policy and ministerial decisions, but rejected banning the use of reasonableness for reviewing ministerial and political appointments.

“If it satisfies Levin, I support it,” he said, indicating that he would support a limitation in the application of the legal principle as long as the justice minister doesn’t advance other bills.

Justice Minister Yariv Levin arrives at Prime Minister Benjamin Netanyahu’s office at the Knesset, in Jerusalem, on June 14, 2023. (Yonatan Sindel/Flash90)

Such an event appears unlikely, as Levin has expressed his determination to push through his plans in their entirety.

The use of this judicial tool — in which the court can rule that not all relevant considerations were taken into account or the wrong weight was given to the different considerations — has frequently invoked the ire of the right-wing and religious coalition parties currently seeking a sweeping judicial reform. They argue that it hands the judges too much power on subjective matters.

Barak emphasized that he supported the talks held at the President’s Residence and acknowledged that a deal on the issue needed to be reached.

“I held three conversations with the president and I told him that we are in a constitutional moment. A door must be opened to solve the issues. This is a process. Let’s start one now in which we deal with our real constitutional problems,” he said.

Last week, opposition party heads Yair Lapid and Benny Gantz announced that they were freezing the overhaul talks after Prime Minister Benjamin Netanyahu torpedoed a vote to name two MKs to the Judicial Selection Committee, preventing the key panel — which picks all of Israel’s judges and is at the center of the compromise talks — from convening for at least a month. While Netanyahu sought to have his coalition vote against all nominations for the panel, some lawmakers revolted and voted in favor of opposition candidate Karine Elharrar, who received a seat on the committee. But the vote for the second position has now been pushed off by 30 days, blocking the panel from meeting and leading the opposition heads to accuse Netanyahu of going back on his word.

Levin has said that he will not convene the committee anyway until he can pass a highly divisive bill to change its composition, despite a backlog of about 80 judges that need to be appointed for an overtaxed judiciary.

Regarding judicial appointments, Barak said Sunday he was not open to changes.

“On the matter of appointments, it is correct to leave the situation as it is. Appointments are very important. When you see the kind of appointments this government has made, you see darkness,” he said.

The makeup of the judicial selection panel is central to the coalition’s ongoing efforts to greatly increase political control over the judiciary. A key bill in the overhaul plan would reshape the committee and hand the government an automatic majority, giving it the power to determine most judicial appointments.

That bill is on the cusp of being passed into law, and can be brought for its final, back-to-back votes in the Knesset plenum at a moment’s notice. However, such action is almost sure to lead to a resumption of intense public opposition, as was seen before the legislation was frozen in March to allow for negotiations on a broadly accepted compromise for judicial reform.

Months of compromise talks have not produced a breakthrough, and now appear to be frozen for the coming weeks as pressure is increasing within the coalition to resume the legislative push.

“I prefer zero changes in the justice system over dictates from [former court] president Aharon Barak,” tweeted firebrand Likud MK Tally Gotliv in response to Barak’s remarks. “The very fact that someone is negotiating with him on behalf of the coalition is quite shameful.”

Likud MK Tally Gotliv seen outside the office of Prime Minister Benjamin Netanyahu at the Knesset, June 14, 2023. (Yonatan Sindel/Flash90)

Netanyahu vowed Sunday that his government would begin this week to unilaterally advance elements of the overhaul plan, accusing Lapid and Gantz of “playing a game” with the negotiations.

Critics say the overhaul will sap the High Court of Justice of its power to act as a check and balance against parliament, eroding Israel’s democratic character and leaving minorities unprotected. Supporters say the legislation is needed to rein in what they see as an over-intrusive judiciary.