As of Tuesday, the judicial reform and almost all of its related bills are in limbo, with Prime Minister Benjamin Netanyahu having announced that the final votes will not take place until late April and only after dialogue begins with the Opposition. Here is what you need to know.
Three out of five bills are basic laws, and the Supreme Court's intervention in them will cause a clash of branches. The most volatile law is the Makeup of the Judicial Selection Committee Law, according to which the Supreme Court is likely to intervene on the grounds of precedential intervention. Even before the final ruling is given, even a temporary suspension of the implementation of some of the new basic laws will lead to a constitutional drama, into which the State of Israel will enter on Passover Eve and Israel's 75th Independence Day.
Public Service Bill (Gifts)
There is a chance that the judges will issue an order to suspend the law's implementation.
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This bill allows elected officials, for the first time, to receive money as a gift to pay for legal expenses of cases against them and medical procedures, which will be reported and transparent.
The bill is intended to prevent elected officials from going bankrupt because of a decision to investigate them or file an indictment against them, thereby minimizing the potential damage of an incorrect decision by the Law Enforcement and Collection System Authority or of negligence in carrying out an investigation within a reasonable time frame.
The attorney general opposed the bill because, in her opinion, it constitutes a widespread breeding ground for corruption and allows elected officials to receive a gift for their public positions for the first time. A situation like this will likely cause elected officials to feel obligated to those who gave them the monetary gift and cause those giving the gifts to feel obligated to fund the elected officials.
In 1994, the Supreme Court wrote that the Public Service Bill "gets out in front of complaints claiming that the gifts are likely to affect the elected officials' judgment." Judge Daphne Barak-Erez recently wrote: "We must minimize in advance, as much as possible, the potential of a conflict of interest between decision makers."
It is difficult to estimate the likeliness of the Supreme Court's intervention and how it will do so. The Supreme Court has another tool – a "nullity notice," which allows it to return the bill to the Knesset to be amended. There is a chance that the judges will issue an order that will suspend the bill's implementation because there are elected officials, primarily the prime minister, who are on trial.
The Judicial Selection Committee Law
There is a high probability that the basic law's implementation will be suspended until a ruling is given.
This basic law changes the makeup of the Judicial Selection Committee so that the governing Coalition can choose the judge that will serve as the Supreme Court's president and appoint two Supreme Court judges every term. The rest of the Supreme court judges who are to be appointed during the term and the rest of the judges in the other courts will be chosen with the consent of the representation of the judges in the committee itself.
In the Aviram v. Minister of Justice case ruling, the judges wrote that appointing a judge by politicians alone violates the judiciary's independence, and this violation breaches the foundation of the democratic system. A breach of the democratic system is the grounds on which the Supreme Court authorized itself to intervene regarding basic laws. If it intervenes, it will be the first time the Supreme Court will do so on the grounds of an "unconstitutional constitutional amendment," which will cause constitutional drama.
The judiciary intervention in this law is problematic not only because this is a basic law but also because it deals with the Supreme court itself – so the Supreme Court is in a conflict of interests of sorts. The judges who will deliberate on the petition against the law are the same judges who are on the Judicial Selection Committee and, more specifically, are part of the presidency of the Supreme Court, who are allowed to be replaced according to this law.
The Supreme Court ruled this week that the attorney general is not in a conflict of interest by being involved with the attorney general's law in the reform because "the clashing interests inherently constitute the role of the attorney general, who is responsible for giving legal advice."
This is also how the Supreme Court will likely rule on its own conflict of interest. In this petition, there is a high probability that the implementation of this basic law will be suspended until a ruling is given because its implementation will create an irreversible situation in which a new Supreme Court Judge will be appointed and new judges will be selected for the Judicial Selection Committee. Suspending the implementation of a basic law in itself is unprecedented and constitutes constitutional drama.
The Incapacitation Law – passed on Sunday
This basic law states that only the government and the Knesset can declare the prime minister incapacitated, and only due to medical reasons. The law is intended to prevent the attorney general from declaring the prime minister "functionally incapacitated" – due to subjective reasons.
The existing "Basic Law: the Government" does not grant the attorney general the authority to do so, but according to two opinions – those of attorney general Gali Baharav-Miara and former attorney general Avichai Mendelblit – they do have this authority, as was also stated by two incidental statements made by the Supreme Court, which the law is intended to override.
As was stated, intervening in basic laws is an extreme measure. The attorney general pointed out several problems in the law that will likely make the Supreme Court issue a "nullity notice," – meaning that it will return the law to the Knesset for clarification and amendment. Last week, Judge Alex Stein refrained from issuing an order that will suspend the law, and he ordered the state to respond to the petition against the law in about a month.
Deri Law 2
There is a low probability that the law's implementation will be suspended until a ruling is given.
This basic law prevents the Supreme Court from intervening in the appointment of the government's ministers. This law essentially overrides the Deri-Pinhasi precedent that allowed this.
This basic law received legal support from part of the Israel Legal Academy and even from several Supreme Court judges, who oppose the use of reasonability as grounds for ministerial appointments. However, the law was passed to allow MK Aryeh Deri to serve as minister after the Supreme Court overturned his appointment.
Judicial intervention in basic laws is an extreme and controversial measure and lacks authority in the law. Nonetheless, the Supreme Court established two possibilities for their intervention: the first is an "unconstitutional constitutional amendment" – when a law violates the foundations of the democratic system. This ground for intervention has never been used. The second is "misuse of constituent authority" – when procedural faults are found in the legislation. This ground for intervention has been used twice.
The Supreme Court ruled that a personal law is likely to be overturned on these grounds, even hinting at this in the ruling it gave that overturned Deri's appointment. The attorney general supports the intervention. The overturning of a basic law because it is personal will be precedential and another dramatic development in the Supreme Court's intervention in basic laws.
There is a low probability that the law's implementation will be suspended until a ruling is reached because Deri's appointment does not violate human rights and because the Supreme Court did not suspend his previous appointment despite the petitions made.
The Chametz Law
The Chametz Law would allow hospital directors to outline their own policy and choose whether to prohibit bringing Chametz into the hospital during Passover.
It is designed to undo a Supreme Court ruling that prohibited security guards from searching the belongings of those entering the hospital's gates, nor to warn them not to bring Chametz into the hospital.
The probability of the law being overturned is low because while the bill authorizes the hospital directors to outline policy – it does not instruct the security guards to enforce it and does not give anyone any authority whatsoever to enforce the matter of Chametz.
In the hearing, the judges are expected to ask what the practical significance of the hospital director's policy is. A possible answer is putting up signs instructing not to bring Chametz into the hospital. In a case like this, the judges will examine whether there is a violation of rights and if the violation is severe enough to justify the law's overturning or interpreting what is allowed and what is prohibited within the law – which is the more likely possibility. There is a possibility that the Supreme Court will suspend the law's implementation until it reaches a ruling because it will not reach one until this coming Passover.
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