Justice Minister Levin & FM Sa’ar present ‘compromise proposal’ for judicial reform

Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar on Thursday presented a “compromise outline” for softened judicial reform. The proposal aims to reform the Judge Selection Committee for the Supreme Court and, for the first time, seeks to enshrine guiding principles for legislation in a Basic Law.

The composition of the selection committee was among the most controversial aspects of the government’s judicial reform effort, which was shelved after the Oct. 7 terror attack in 2023.

However, Levin has refused to approve the selection of new judges under the old model, prompting a showdown with the court, which gave him an ultimatum until Jan. 16 to choose a new Supreme Court president and four new judges.

The new proposal was presented by Levin, the main architect of the original judicial reform, and Sa’ar, his predecessor as justice minister. Sa'ar has long been a proponent of judicial reforms despite previously criticizing Levin’s plans before the war, when he was part of the opposition.

The selection committee currently consists of nine members: two ministers, two Knesset members (MK), two representatives from the Bar Association, and three Supreme Court judges.

One of the main arguments brought forward by the right-wing government was that the two members of the Bar Association and the three judges form a permanent left-leaning majority (in addition to potential left-leaning opposition or government representatives)

In addition, a selection currently requires a majority of seven votes, effectively granting the three judges, who historically vote as a bloc, veto power and allowing the judiciary to nominate judges according to its preferences.

The key proposed change is to replace the Bar Association members with two veteran lawyers – one appointed by the coalition and the other by the opposition.

In practice, this arrangement would give the government four representatives (two ministers, one MK and a lawyer), while the opposition has two (one MK and a lawyer), and the judges remain with three.

To elect a judge to the Supreme Court would then require a majority of five and must include at least one representative from the coalition and the opposition.

In parallel to presenting the proposal for a new selection model, Ynet News reported that Levin is expected to approve the selection of Justice Yitzhak Amit as the new court president under the old seniority model as a concession.

In addition, the new proposal would only be implemented under the next government.

The second major point of Levin and Sa’ar’s plan touches on another sore point in the judicial reform debate – the court’s ability to limit or cancel the legislation of the quasi-constitutional Basic Laws.

The new proposal aims to legislate the country’s first “Basic Law: Legislation,” which would deprive the Supreme Court of judicial review of Basic Laws while also creating more hurdles for the Knesset to legislate them.

Levin and Sa’ar said the plan to make legislative procedures of Basic Laws substantially different to ensure “that it will not be possible to enact a Basic Law by stealth or due to coalition demands.”

According to the proposal, regular laws may only be annulled by the Supreme Court, and only with a majority of at least half of its judges.

The only time in Israel's history that a court annulled a Basic Law happened in January 2024, when the court struck down the Reasonableness Standard Law, the first part of the judicial reforms that was passed into law in July 2023.

The bill aimed to deprive the Supreme Court of using the standard of “unreasonable” to annul decisions made by ministers, cabinet members, and cabinet decisions made through a majority vote.

In a joint announcement, Levin and Sa’ar said they created the proposal together with former Cabinet Minister Yizhar Shai, a former member of the Israel Resilience party, led by former Defense Minister Benny Gantz, and Brig.-Gen. (Res.) Dedi Simchi. Shai and Simchi both lost a son during the current war. 

Opposition leaders were notably slow to react to the proposal. On Thursday evening, opposition leader Yair Lapid wrote on 𝕏 that he would respond to the proposal as soon as “he complies with the court order and appoints a Supreme Court president by Jan. 16.”

Gantz didn’t respond directly but his National Unity party stated it is “studying the details of the legal outline and its implications, tomorrow the faction of National Unity will meet for a preliminary discussion on the issue after consulting with experts.”

Yisrael Beytenu party chairman, Avigdor Liberman, noted, “The only solution to the constitutional crisis is establishing a constitution for the State of Israel. Everything else is simply patchwork.”

The leader of the left-wing party "The Democrats" Yair Golan, categorically rejected any talks about the new plan.

“There will be no discussion or agreement by the Democrats on any proposal before stopping all the laws of the regime coup, including the attempt to take over the media, the Bar Association, the ouster of the Attorney General, the subordination of the Defense Ministry to the Minister of Justice, etc.,” Golan stressed.

Amit Bachar, the head of the Bar Association, which would lose its representatives in the Judge Selection Committee, sharply criticized the new proposal as "deceptive and dangerous."

He said the plan sought to "implement the principles of the coup d'état, the main of which were the politicization of the election of Supreme Court justices and increasing the government's power over the judiciary."