Israeli Supreme Court
Israeli Supreme CourtPhoto: Yonatan Sindel/Flash90

Since the 1980s, Israel has experienced a “judicial revolution”. By judicially declaring Israel to have a constitution, the court usurped the legislative power. Using a unique and exclusive “reasonableness” doctrine, it also transferred the last word on all executive decisions, including appointments to ministerial positions, to its own hands. And above all, the court holds a preposterous veto power over the appointment of justices to its own body.

Recently I presented before the members of the Constitution, Law and Justice Committee my plan to strengthen the Separation of Powers in Israel, in a draft proposal for discussion in the Committee. Each part of the proposal is meant to address an aspect of the judicial usurpation, returning power to the Israeli democratic process, and bringing Israel in line with almost every known Western democracy:

1. The Judicial Appointment Committee

We are providing each of the 3 branches of government an equal and appropriate representation: legislative, executive and judicial. Instead of sitting judges, the judicial representatives on the Committee (besides the Chief Justice of the Supreme Court) will be retired judges, to prevent a conflict of interests.

The Committee shall comprise 9 members: 3 ministers, 3 members of Knesset and 3 judges.

The judges shall be: Chief Justice of the Supreme Court; a retired chief judge of a district court; and a retired chief judge of a magistrate court, who are selected by the Minister of Justice with the Chief Justice of the Supreme Court’s consent.

Members of the Knesset shall be: Chair to the Constitution, Law and Justice Committee; Chair to the House Committee; and Chair to the State Control Committee. The Chair to the State Control Committee is held by the opposition by law, so this ensures opposition representation in the selection process. The Ministers shall be: the Minister of Justice, who will be Chair to the Committee, and two other ministers who will be selected by the government.

2. The “Reasonableness” Doctrine

Israeli administrative law is based predominantly on case law, including a unique "reasonableness" doctrine that enables courts to replace administrative discretion with their own. The proposal will prohibit courts from reviewing elected officials’ acts on the basis of their “reasonableness”, in order to maintain elementary democratic principles.

3. Judicial Review of Constitutional Provisions (Basic Laws)

No court, including the Supreme Court, shall review or even hear challenges regarding the validity of a constitutional provision, explicitly or implicitly, and such decision shall be null and void.

4. Constitutional Review

The Supreme Court alone shall be vested with constitutional review power. Other courts shall not have this authority.

Constitutional review by the Court shall be administered by a full quorum of the Court voting unanimously to declare a law unconstitutional.

The Court shall not be authorized to administer constitutional review if the law under consideration includes an “override clause” stating it shall be valid even in light of any constitutional provision. The “override clause” shall be valid until a year after the end of the Knesset’s term, unless the following Knesset decides to continue its application.

This proposal is based on a previous proposal that passed a vote in a preliminary parliamentary session.

MK Atty. Simcha Rothman is the Head of the Knesset's Constitution, Law and Justice Committee