FEBRUARY 16 • 2023 | 9

opinion
Is it Judicial Reform or a 
Bid for Unlimited Power?
T

he legal opinion pub-
lished by Attorney 
General Gali Baharav-
Miara systematically dis-
mantles every assertion and 
justification put forward by 
the government 
in support of its 
radical judicial 
overhaul.
In particular, 
Baharav-Miara 
shatters the 
facade of a com-
parative basis for 
the “reform,” that is, the claims 
that the proposed changes 
would bring Israel in line with 
other democracies. In fact, the 
proposal makes no attempt to 
enhance the balance among 
the branches of government: 
It is quite simply a demand for 
unlimited government power.
Israel’s attorney general 
reminds us of a fundamental 
principle: Democracy is not 
only “majority rules.” True 
democracy also requires the 
protection of human rights, 
the rule of law, the separation 
of powers and an independent 
judiciary that can serve as an 
effective check on the other 
government branches. The 
so-called reform says nothing 
about these principles.
The attorney general’s 
opinion, spanning 112 pages, 
includes a detailed analysis 
of each component of the 
“reform”: the change in the 
composition of the Judicial 
Appointments Committee; 
curtailment of the Supreme 
Court’s ability to strike down 
laws; revoking its power to 
nullify Basic Laws; and elimi-
nating the criterion of reason-

ability. Each of these issues is 
the subject of a thorough and 
detailed analysis.

JUDICIAL APPOINTMENTS
For example, according to the 
explanation attached to the 
“reform” bill, “The system for 
appointing judges in Israel is 
very much an outlier from the 
practice in the Western world.” 
Really? The attorney general 
demonstrates with fact-filled 
tables that, “in effect, an exten-

sive examination finds that it is 
precisely the proposed method 
that — in a comparative per-
spective — is an exception.” 
 As for the Court’s power to 
strike down laws, she writes 
that the “details of the [pro-
posed] arrangement … would 
dramatically weaken the 
defense of human rights.”
The claim that the reform 
proposal is based on compar-
ative law is particularly prob-
lematic and misleading. The 
reform cherry-picks, choosing 
one component from each 
country, and this is apparently 
enough for its authors to justify 

importing it to Israel. But, as 
the attorney general writes, no 
component stands on its own, 
and each is actually part of a 
broader system.
“
An attempt to adopt an iso-
lated institutional mechanism 
found in one legal system, 
while ignoring the context in 
which it developed … and its 
unique characteristics — is 
doomed to failure. 
“It will not work to import 
into our law a little bit from 

here and a little bit from there, 
a piece from Canada, and a 
fragment from the United 
States, and a morsel from 
England and so on.”
While the reform’s propo-
nents have their eyes fixed 
on unlimited governmental 
power, Gali Baharav-Miara 
focuses on the citizen and his 
or her rights. She explains how 
some of the proposed changes 
would be harmful to citizens 
and jeopardize their rights: 
eliminating the grounds of 
reasonability would in effect 
eliminate the possibility of 
compelling the government to 

behave reasonably.
“Citizens would no longer 
have a remedy to prevent 
harm to themselves and to 
their rights as the result of an 
extremely unreasonable deci-
sion — and this, on a daily 
basis.” 
Elsewhere, she writes that if 
the proposal is enacted, we will 
have an unlimited executive 
branch, and it will no longer 
be possible to come to citizens’ 
rescue in the event of an abuse 
of governmental power.

NO BALANCE 
OF POWER
As for the Supreme Court, 
the attorney general believes 
that passage of the bill would 
create a system in which the 
executive and the legislature 
have unlimited power, which 
could end up in “damage to the 
core principles of the state as a 
Jewish and democratic state.” 
This statement has special sig-
nificance.
Accor-ding to the Supreme 
Court ruling on the Nation-
State Law, there is only one 
limit on the Knesset when it 
enacts or amends a Basic Law: 
It cannot repeal the fact that 
Israel is a Jewish and demo-
cratic state. If it does so, the 
Supreme Court has the power 
to intervene and strike down 
even a Basic Law.
What are those fundamental 
principles of democracy that 
a Basic Law cannot harm or 
undermine? 
According to the Court’s 
ruling, they are, “free and 
equal elections; recognition 
of the core of human rights; 
separation of powers; the rule 

Suzie Navot
Times of 
Israel

Then-newly appointed Attorney General Gali Baharav-Miara at a 
welcome ceremony for her in Jerusalem on Feb. 8, 2022. 

YONATAN SINDEL/FLASH90/TIMES OF ISRAEL

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