“Israeli” AG: Judicial Overhaul Plan “Would Give Gov’t Unrestrained Power”
Story Code : 1039419
And according to a statement by the entity’s Attorney General’s Office, Baharav-Miara told so-called “Justice Minister” Yariv Levin that his proposed legislation would “fundamentally change the democratic nature of the state’s governance.”
Baharav-Miara wrote in her paper that “such a dramatic process” should not be advanced without more thorough consultations and groundwork, a position that will likely complicate Levin’s effort to pass the reforms as government legislation.
Baharav-Miara’s lengthy 120-page legal opinion was drafted following a meeting she held with Levin three weeks ago, in which he asked her to submit her position on his highly controversial and far-reaching legislation within three days.
“Every one of the proposed arrangements raises substantial problems that go to the root of the principle of the separation of powers, judicial independence and the professionalism of the judicial branch, protection of the rights of the individual, the rule of law, and the preservation of proper governance,” wrote the attorney general.
Levin’s proposals would grant the government total control over the appointment of judges, including the entity’s so-called “Supreme Court” justices; severely limit the so-called “High Court of Justice’s” ability to strike down legislation; and allow the Knesset to re-legislate laws the court does manage to annul with a majority of just 61 of the Knesset’s 120 MKs.
Adopting the proposed arrangement would lead to a governmental regime in which the executive and legislative branches would have broad and in practice unlimited authority,” Baharav-Miara wrote.
She added that it would leave the “Israeli” entity’s system of government “without any institutional provision” against the improper use of legislation to circumvent judicial review.
She was particularly critical of the proposals to give the government full control over the appointment of judges, saying this would severely harm judicial independence and professionalism.
Levin’s plans for severe restrictions on the so-called “High Court’s” ability to exercise judicial review over legislation were also strongly criticized by the attorney general.
The “harm to the independence of the judiciary and the status of the judicial branch” would be exacerbated due to the entity’s system of government, in which the judicial branch and its power of judicial review is the only institution of governance with a substantial role in restraining the power of the political majority, she argued.
Finally, she observed that the “Israeli” entity does not have a formal or stable constitution; has no bill of rights; no restrictions on the ability to pass basic laws with quasi-constitutional status; no decentralization of powers through a federal system; no constituency-based elections; is not subject to any international judicial review, such as in Europe with the European Court of Human Rights; and has only a unicameral parliament.
Baharav-Miara also noted that Levin’s proposed legislation does not deal at all with any restrictions on the executive and legislature “but only pushes aside and reduces the place of the judiciary” to review those branches of government.
“In the absence of a broad arrangement of a system of relations between the branches of government, the result is an absence of a mechanism of protection that will guarantee proper procedure, individual rights, the rule of law, and proper governance,” she wrote.
The “attorney general” said that “such substantial changes to the relationship between the three branches of government” must be carried out “in an organized and considered manner” and “through broad agreement,” adding that the process could not be advanced without more fundamental groundwork and consultations with relevant government officials and the Courts Administration.
This last determination will likely make it difficult for Levin to advance his legislation as a government – rather than a private – bill. A government bill enjoys a quicker and more streamlined process, but it also involves the “Justice Ministry’s” advisory division on legislation, which would adopt Baharav-Miara’s position and likely significantly delay the legislative process.
Because the “attorney general” refused to issue her opinion on Levin’s legislation within the extremely narrow three-day window he gave her, the Chairman of the Knesset Constitution, “Law and Justice Committee”, MK Simcha Rothman [Religious Zionism], has submitted his own similar private bill for which the committee has already begun hearings.