March 2023
The impact of the current coalition government’s plan for regime revolution on the rights to freedom of religion, equal treatment for liberal Jewish streams and the rights of women, LGBTQ, Israeli Palestinians and new immigrants
These days the Knesset’s Constitution, Law, and Justice Committee is discussing a set of bills promoted by the Minister of Justice, MK Yariv Levin, and the Chairman of the Committee, MK Simcha Rothman. These bills form but a part of a proposed general reform to the Israeli legal system.
In practice, this so-called “reform” constitutes a regime overhaul, a coup that will be carried out through the crushing of the judiciary and its complete subordination to the executive branch and the legislative branch (that is itself under the control of the executive branch). The “reform” will bring about a complete change to the current democratic system of government in Israel. The new system will result in an executive branch with unlimited power, a situation that is unprecedented in democratic countries.
The following are the proposed changes in the aforementioned bills:
– The composition of the committee that selects and appoints judges will be changed in such a way that the government and the coalition will have absolute control over the committee; judges will become dependent on the mercy of the government and the coalition. The coalition will have unrestrained control over the appointment and promotion of judges.
– significant curtailment of the courts’ power for judicial review of the legislative authority:
a. Basic Laws will be immune to judicial review
b. Laws may only be struck as unconstitutional by a full panel of all 15 justices of The Supreme Court and where at least 80% of the judges (i.e., 12 judges) rule that the law should be struck down
c. Two proposals for an override mechanism are pending legislation. The first, a bill drafted by the chair of the Constitution, Law and Justice Committee. According to this bill, any law struck down by the court may be re-enacted by a majority vote of 61 Members if the Knesset (out of 120 MKs), as long as the law states that it is valid despite the “court’s ruling”. A bill drafted by the Minister of Justice stipulates that a law enacted by a majority of 61 members of the Knesset could be given “advance immunity” from judicial review even before the law considers it.
– Curtailing judicial review of executive authority decisions by abolishing the “manifestly unreasonable decision” cause for judicial review. The Minister of Justice’s proposal will abolish the courts’ ability to use this rationale to review decisions made by the Executive. A proposal by the chair of the Constitution, Law and Justice Committee provides that courts will neither have the authority to inquire into the reasonableness of a decision nor will it be able to issue an injunction against any decision of “the government, the prime minister, any minister or elected official as stipulated by law”
– The government and its ministers will no longer be bound by opinions issued by the Attorney General (who also serves as the legal advisor to the government) or the legal advisors to the various ministries. Under the proposed law, the Attorney General will neither serve as the Executive’s authoritative interpreter of the laws nor as its representative in court. In addition, the government and each minister may determine what they believe is the correct interpretation of a law even if it contradicts the legal opinion of the AG. They may also decide to hire their own private lawyer to serve as their legal representative before the court. Finally, the legal advisors for the ministries will be subordinated to the minister rather than as public servants as is the case today.
If completed, this set of legislation will bring devastating results to the legal system and the Israeli system of government. When the bills become laws, human rights in Israel will no longer be protected.
This current government is the most extreme government Israel has ever had. The coalition agreements signed when the government was formed make it clear that the government intends to seriously damage religious freedom, equal protection for Jewish liberal streams, the rights of women, LGBT and Israeli Palestinians. The proposed legal coup will bring about a situation where it will not be possible to legally challenge the violation of these rights.
IRAC has been working for years to promote freedom of religion and freedom from religion, as well as fighting against the exclusion of women and gender segregation in the public sphere, promoting LGBTQ rights and fighting against racism and for the rights of new immigrants. The current government threatens to hurt all of these. Below we will give examples of the consequences of the legal coup on issues of religious freedom, women’s rights and the rights of LGBTQ people and Israeli Palestinians.
Freedom of Religion and Equal Rights for the Liberal Jewish Streams
- Reform and Conservative conversions were recognized by the Supreme Court for the purposes of registration in the population registry and for the purposes of the Law of Return. The government stated its intention to change this and if this change is indeed legislated (either through amending the Law of Return or through the enactment of a Conversion Law recognizing only Orthodox conversions) – it will be difficult to strike the law in the Supreme Court. Even if the law is struck down – the Knesset will be able to override the court’s ruling.
- Following a Supreme Court ruling ordering religious councils to allow those who were converted through the Reform or Conservative movements to go through ritual immersions (tvilah) in public ritual baths (mikvahs), the law was amended in a way that allows a religious council to refuse to do so. The Attorney General decided that the law would not be implemented until mikvahs are built for the liberal streams. If the opinion of the Attorney General is no longer binding on the government, the law will be enforced in a way that discriminates against Liberal Judaism. It will be difficult to strike the law and even if it is struck down, the Knesset will be able to override it.
- Following petitions to the Supreme Court, the state funds the salaries of some Reform and Conservative rabbis. The government has stated its intention to enshrine in law the status of neighborhood rabbis and rabbis working in regional councils. If it does so, and also stops funding of rabbis from the Liberal streams, it will be difficult to have the law struck down and if it is struck the coalition can override the Court’s judgment.
- Currently, the Liberal streams (and others who do not subscribe to an ultra-Orthodox worldview) suffer from discriminatory practices at the Western Wall, particularly when it comes to egalitarian prayer and prayer of the Women of the Wall. The current government has stated its intention to prevent all egalitarian prayer at the Western Wall and a bill to that effect was submitted to the Knesset. If this law is approved by the Knesset, it would be difficult to have the law struck down, and if it is struck the coalition can override the Court’s judgment.
- The Supreme Court ruled that hospitals may not prohibit chametz on hospital grounds both because there is no law authorizing such prohibition and because such prohibition is a severe violation of patients’ rights. The Knesset enacted a law that will declare a ban on chametz over Passover. It will be difficult to have the law struck down, and if it is struck down the coalition can override the Court’s judgment.
- The courts intervened many times when municipalities refused to allocate land and synagogue buildings to Reform congregations. If the court is prohibited from reviewing decisions using the “manifestly unreasonable decision” rationale, it will not be possible to challenge the unreasonable conduct of a municipality, e.g. in a case where a municipality drags its feet and refrains from making a decision on the allocation of land to a Reform congregation.
- The government stated its intention to amend the Law Prohibiting Discrimination in Products, Services, and Entry to Places of Entertainment and Public Places (the Anti-Discrimination Law) in such a way that discrimination in the provision of services based on religious belief would be allowed. If this law is approved by the Knesset, it will be difficult to have the law struck down, and if it is struck down the Knesset will be able to override the Court’s judgment. A lawsuit filed by the Reform and Conservative Movements against Channel 14 due to their being excluded from broadcasts by the Israel Heritage Channel (Channel 14’s previous incarnation) was based on the Anti-Discrimination Law. The amendment of the law will legalize this discriminatory conduct on the basis of religious affiliation.
Women’s Rights – Gender Segregation and the Exclusion of Women from the Public Sphere
- The government stated its intention to amend the Anti-Discrimination Law in such a way that it would expand the cases where gender segregation will be permitted by law. Today, such segregation is only allowed in the most exceptional cases. Amending the law will make it possible to send a woman to the back of the bus (contrary to the ruling of the Supreme Court which prohibited this), to require a woman to change seats on a plane because an ultra-orthodox passenger refuses to sit next to her, or to move women sitting in a train car used for prayer (contrary to the ruling of the courts which prohibited this). It will also make it legal to stop women from taking equal part in funeral ceremonies or in any public service, such as excluding women from ads or excluding women from participating in radio station broadcasts (as was the case in the Kol Baramah class action lawsuit filed by IRAC. The court ruled in our favor and the exclusion ceased). Recently, a pilot program allowing gender segregation in select locations of National Park springs was announced. This could soon lead to segregation in all National Reserves and National Parks. It would be difficult to contest this discriminatory practice in court, and if the court intervenes, the Knesset will be able to overcome the judgment.
- Amending the Anti-Discrimination Law so to allow discrimination in the provision of public services on the basis of religious belief could lead to a state where public services will be provided separately based on gender or while requiring women to dress modestly. It will be difficult to have the law struck down, and if it is struck down the coalition can override the Court’s judgment.
- Denying the courts from reviewing administrative actions using the “manifestly unreasonable” cause means that it will not be possible to stop improper conduct of a municipality – for example in a situation where a municipality refuses to remove illegal modesty signs – as was the case in Beit Shemesh until the Supreme Court intervened in the matter – or when a municipality does not take steps to stop the defacing of women’s images on billboards – as happens in Jerusalem.
- The government plans to expand the authority of the rabbinical courts so they will be able to rule on civil matters according to the Torah. This is bound to weaken women’s rights in many areas.
LGBTQ rights
- Plans to amend the Anti-Discrimination law so as to allow discrimination on the basis of religious belief will make it possible to refuse the provision of services to those who belong to the LGBTQ community (lawsuits forbidding such actions were handed down in the past. This may no longer be the case).
- Currently, the authorities do not approve requests for adoption when the applicants are gay couples. A case contesting this policy is pending before the Supreme Court. If the Supreme Court decides to intervene, the Knesset will be able to overcome the court’s ruling.
- If the “manifestly unreasonable” cause is abolished, it will no longer be possible to challenge the unreasonable conduct of a municipality, as happened in relation to the Jerusalem Municipality’s refusal to fund the Open House (Jerusalem’s LGBTQ organization) until the Supreme Court intervened. Another case involving the Jerusalem Municipality concerned its refusal to allow LGBTQ couples (who by law cannot marry in Israel) to take part in an initiative which allowed couples to hold their wedding in open public spaces in Jerusalem during the Covid-19 shut-down.
Fighting racism and racial discrimination
- The plan to amend the Anti-Discrimination law means that it will be possible to refuse providing services to Israeli Palestinians. IRAC’s Racism Crisis Center won a few cases where services were denied from Israeli Palestinians based on their race or place of residence.
- Abolishing the “manifestly unreasonable” cause means that the Supreme Court will not be able to interfere in decisions of the Attorney General to refrain from prosecuting those who incite to racism and violence, or the decision of ministers to refrain from initiating disciplinary proceedings against members of the civil service who incite to racism. A number of legal proceedings by IRAC have led to criminal prosecution and disciplinary proceedings against rabbis who incited to racism. If it is no longer possible to challenge decisions not to prosecute, racism will only get worse.
- The government stated that it intends to amend the Basic Law: the Knesset in a way that would prevent the disqualification of Jews running for Knesset due to incitement to racism but would allow the disqualification of Israeli Palestinian candidates. If this law is amended, the Supreme Court will not be able to intervene since this is a Basic Law, and there is no precedent for striking down Basic Laws as unconstitutional. This will legitimize racism inside the Knesset and will fatally injure the right of Israeli Palestinians to be represented in the Knesset.
- The government stated it will award preferential treatment in admissions to academic studies, employment positions as well as in allocation of resources and benefits to military veterans. At the same time, the government wants to promote Basic Law: Torah Study, which will stipulate that Torah study is equivalent to army service. This will result in severe discrimination against Israeli Paletinians. This state-sanctioned discrimination will be difficult to contest in the Supreme Court, both because the law establishing the rule is a Basic Law and because the courts will no longer be able to scrutinize laws under the “manifestly unreasonable” cause.
New Immigrants’ rights
- The government intends to amend the Law of Return and remove the “grandchild clause” (where non-Jews who have at least one Jewish grandparent are eligible for citizenship under the rules of the Law of Return). This could harm thousands of immigrant families, especially families belonging to Reform communities in the diaspora that recognize patrilineal Jewish status in addition to matrilineal Jewish status. It will be difficult to strike down this amendment in the Supreme Court. Even if the amendment is struck down, the Knesset will be able to override the ruling.
- Abolishing the “manifestly unreasonable” cause means that the Supreme Court will not be able to intervene in decisions of the Population Authority which wrongfully rejected requests of immigrants and those entitled to citizenship under the Law of Return. IRAC’s Legal Aid Center for Olim has won numerous cases against unreasonable decisions of the Population Authority in relation to both immigrants and underprivileged groups (such as non-Jewish women who were victims of domestic violence of their Israeli husbands and widows). Abolishing the “manifestly unreasonable” cause may prevent any possibility of repealing unreasonable decisions of the Population Authority.
Summary
To the extent that the bills that the coalition seeks to promote as part of the legal coup are approved, the government and the coalition will be able to enact laws that affect each and every one of the issues listed above, in a way that will either create a severe violation of basic constitutional rights or will preserve and deepen an existing violation. The Supreme Court will no longer be able to grant effective relief that will remedy the harm to those whose rights were violated.
It should be added that even if the legal change will be limited at first to the issue of the composition of the committee for the selection of judges, this change, in and of itself, will be enough to bring about a fatal violation of rights, since if the judges are appointed by the coalition, the judiciary will no longer be composed of professional and unbiased judges and that will affect their rulings. It will therefore no longer be possible to rely on receiving relief from the courts in the event of violations of rights.
There can therefore be no doubt that we must oppose the proposed laws unequivocally as they will harm the rights of all of us.