Judicial Legislation Tracker

Abolishing the Reasonableness Standard

An amendment to Basic Law: The Judiciary

Date last advanced: July 24, 2023
Sponsor: Constitution, Law, and Justice Committee

  • Would forbid the High Court from judging decisions or appointments made by ministers or the government by the standard of “reasonableness.”
  • Currently, the High Court applies the reasonableness standard to block government administrative decisions that are disproportionately based on political or personal interests over public interests. It can not be used to strike down legislation.
  • Would significantly curb judicial oversight over the government and remove a key legal tool used to prevent corrupt government decisions.

Tightening the Requirements for Declaring the Prime Minister Unfit for Office
(Incapacitation Bill)

An amendment to Basic Law: The Government

Date last advanced: March 23, 2023
Sponsor: MK Ofir Katz (Likud)

  • Requires that the prime minister be mentally or physically incapacitated to the extent that they cannot perform the duties of the office in order to be declared unfit for office.
  • Requires that incapacitation be determined by the prime minister or a three-quarters majority of the cabinet.
  • If the prime minister does not allow the cabinet to vote on the matter, it passes to the Knesset, where it must garner 80 votes to pass.
  • Bars the High Court from hearing petitions pertaining to the prime minister’s fitness, placing the matter entirely in the hands of the government and the Knesset.

*Note: While the Netanyahu government did not frame this bill as a component of its judicial reform package, it is included on the tracker as it impacts the balance of power between branches of government.

Sidelining the Israel Bar Association

Date last advanced: July 5, 2023
Sponsor: MK Hanoch Milwidsky (Likud)

  • Would remove the Israel Bar Association’s power to license lawyers and its representation on the Judicial Selection Committee.
  • Both of these functions would be assumed by a new Lawyers Council, whose chair would be appointed by the justice minister. 
  • By transferring the IBA’s two seats on the Judicial Selection Committee to a new body aligned with the government, this bill would effectively give the government a five-seat majority on the nine-member committee. The government could then unilaterally select lower-court judges. (Supreme Court appointments require a majority of seven out of nine.)

Overhauling Judicial Appointments

An amendment to Basic Law: The Judiciary

Date last advanced: February 21, 2023
Sponsor: Constitution, Law, and Justice Committee

  • Effectively gives the government full control over the first two Supreme Court appointments in its term by changing the makeup of the judicial selection committee. 
  • Additional Supreme Court appointments will require the support of one opposition member and one judge.
  • The current structure requires consensus between the government and legal professionals (including sitting judges).
  • Will appoint the Supreme Court president by means of a judicial selection committee vote, rather than on the basis of seniority.

Blocking Review of Basic Laws

An amendment to Basic Law: The Judiciary

Date last advanced: February 21, 2023
Sponsor: Constitution, Law, and Justice Committee

  • Blocks the High Court from exercising judicial review over Basic Laws, which can still be passed by a majority of 61 MKs

Eliminating High Court Oversight of Ministerial Appointments (Deri 2 Bill)

An amendment to Basic Law: The Government

Date last advanced: March 21, 2023
Sponsor: MK Moshe Arbel (Shas)

  • Blocks the High Court from intervening in or blocking ministerial appointments.
  • This law would pave the way for Shas leader Aryeh Deri to return to the cabinet, despite the High Court’s January 2023 ruling that he was ineligible to serve as a minister.
  • Prior to the government’s swearing-in, the coalition had passed an amendment to Basic Law: The Government to allow Deri to serve as a minister regardless of his tax fraud conviction (referred to at the time as the Deri law). The High Court nevertheless struck down Deri’s appointment on the basis of unreasonability and estoppel (since Deri had suggested he would quit politics as part of a plea deal).
  • Given that this bill, like the original Deri law, is intended to pave the way for Deri to enter the cabinet, it is referred to as Deri 2.

Allowing the Knesset to Bar Judicial Review of Legislation (Override Clause)

Basic Law: Override

Date last advanced: March 13, 2023
Sponsor: MK Simcha Rothman (Religious Zionism)

  • Requires the vote of a Supreme Court supermajority of 12 out of 15 judges to strike down legislation.
  • Permits a 61-MK Knesset majority to re-legislate laws struck down by a Supreme Court vote.
  • Allows the Knesset to attach a notwithstanding clause to legislation passed by a 61-MK majority, which would preemptively bar the High Court from exercising judicial review over that legislation, even if it contravenes a Basic Law. 
  • Establishes an expiration date of two years into the next Knesset term for a law’s notwithstanding clause, after which the Knesset can vote to extend the law’s immunity indefinitely.
  • Constrains judicial review for laws not covered by a notwithstanding clause by requiring the court to find that a law “clearly contradicts” a Basic Law in order to strike it down

Curbing the Authority of Ministerial Legal Advisors

  • Would categorize the legal advice of ministries’ legal advisors as non-binding
  • Would allow ministers and the government to choose what legal position to present to the courts on behalf of ministries 
  • Would permit ministers and ministries to carry out policies deemed illegal by ministry legal advisors or the attorney general

Splitting the Role of the Attorney General

  • Would divide the current responsibilities of the attorney general into three new positions: a legal counselor to the government, a public prosecutor to represent the government in criminal cases, and a legal representative to represent the government in civil cases

Note: Only bills submitted by individual MKs undergo preliminary readings. Bills submitted by the government or a Knesset committee proceed to the first plenum reading after being approved by the Ministerial Committee for Legislation and, if applicable, the sponsoring Knesset committee.