Civil Mizrahi Position Paper on the Levin-Rotman Plan and the Judicial Reform

In January 2023, the new government outlined the main points of a judicial reform plan submitted by the Minister of Justice, Yariv Levin (Likud) and the Chair of the Constitution, Law and Justice Committee, MK Simcha Rotman (Religious Zionist Party). Both supporters and opponents of the plan claim they seek to restore justice to the legal system. Levin and his allies oppose the Supreme Court’s anti-democratic judicial activism, which began in the 1980s.  They see the reform as a necessary corrective aimed at restoring balance between the three branches of government.  Opponents consider the plan a veritable coup d’état: an  attack on the rule of law and judicial independence.

Some of the plan’s supporters claim the opposition is fundamentally “Ashkenazi” in nature and fails to represent “the people.”  This is sheer populism, and undermines the ongoing Mizrachi struggle for true justice in the judicial system.

This position paper offers a civic Mizrahi perspective on the debate.  We argue that before one can stake out a position against or in favor of the Levin-Rotman plan (or any of the compromise plans currently under discussion) one must first analyze how each party to the current struggle seeks to exploit or silence the legitimate Mizrahi grievances  against the courts, and how both fail to advance justice within the judicial system – both for Israeli citizens and for those living in the Occupied Territories.

Our concern is twofold. We fear that either the current plan will be enshrined in legislation or that the current judicial order will remain unchanged. In our opinion, a substantive reform of the judicial system is long overdue, though not for the purpose of entrenching government power over the courts. Reform is needed to stop ongoing violations of civil, social, economic, and cultural rights of marginalized and excluded populations, such as Palestinian Israeli citizens and Palestinians in the occupied territories, Mizrahi women and men, Ethiopian Israelis, LGBTQ people, Israeli immigrants from the former Soviet Union, migrant workers and asylum seekers.

Part A of this position paper outlines our critique of the Levin-Rotman plan. Part B describes the failures of the current judicial system. Part C presents our recommendations for the genuine reform — constitutional, procedural, and institutional — we believe is urgently needed in the judicial system.

a. Mizrahi critique of the Levin-Rotman plan
The revocation of the independence of the judiciary branch with a mechanism that puts control over the election of judges in the hands of  an automatic coalition majority.

The sole purpose of the Levin-Rotman plan is to undermine the judicial system and the checks and balances required for any democratic order. Implementing the plan would grant the executive branch unlimited power. Without such checks, right-wing and left wing governments alike will make judicial appointments based on cronyism, inevitably resulting in corruption and nepotism.  Such an outcome  would certainly not express the will of the people or the marginalized populations of “Second Israel.”

As we explain in Part C, social diversity among judges should be constitutionally guaranteed through the principle of “fair representation” for marginalized populations in the selection of judges.  Moreover, the entire process should be transparent.  The goal should not be to achieve a diversity of ideological positions on the bench.

A constitutional coup by the reactionary, settler-ideological right

Despite the Mizrachi rhetoric used condescendingly by its supporters, the goal of the Levin-Rotman judicial reform plan is not to protect the rights of Mizrachim and other marginalized groups.  There is, in fact,  no guarantee that government-appointed judges will promote justice for either Mizrachim or anyone else. The sole beneficiary of their constitutional coup d’etat is one particular interest group – the ideological and settler-colonial right. The coup is based on a vision developed by the Kohelet Policy Forum, a reactionary, conservative, evangelical, hyper-capitalist and nationalistic group which seeks to weaken democracy, dismantle all social safety nets, and institute a new capitalist and nationalist Jewish order. Its first victims, alongside the Palestinian population in Israel and the Occupied Territories, will be marginalized Mizrachim.

Legislation without public participation

Public participation in legislative processes, especially when enacting basic laws, is essential to the legitimacy of both to the legislative and judicial branches.  This is particularly true with respect to marginalized and excluded groups, whose voices rarely get a public hearing.  The lightning-fast procedure used to push the reform through the Knesset’s Constitution, Law and Justice Committee has failed to meaningfully incorporate input from the public and its independent third-sector representatives. Public concerns on issues such as education, housing, communication, the environment, women’s and LGBTQ rights, should have been aired prior to the vote in the Committee and the first reading  in the Knesset plenum.

Revocation of judicial review of legislation that violates Basic Laws, and of the Basic Laws themselves

Revocation  of judicial review of legislation that violates Basic Laws, and of the Basic Laws themselves, would endow the government – and the legislative branch which is dominated by the governing coalition – with unchecked  political power. What makes  the Levin-Rotman plan so dangerous is that it empowering the coalition to pass any law, no matter how harmful to marginalized groups, as a Basic Law. Once such law receives the title of “Basic Law,” it is completely immune to judicial review. In fact, it is immune to any oversight whatsoever. This grants unlimited power to any government, regardless of its identity.

In the absence of a constitution that enshrines basic human and civil rights, as well as social and collective rights in general, the right of judicial accessibility (the right of standing) would be minimized. The government could then promote a right-wing economic, religious, and conservative ideology that benefits only a small minority that supports the coup. Revoking judicial review of legislation and Basic Laws would jeopardize basic principles such as social and restorative justice, recognition justice, gender justice, and minority rights.

The Civic Mizrahi Collective has no interest in limiting judicial review of legislation.  On the contrary, we seek to preserve oversight and independent judicial interpretation.

Minimizing the space for judicial interpretation in cases of extreme unreasonableness

Mizrahi experience is instructive.  The High Court ruling in the case of the Mizrahi Democratic Rainbow Coalition against the discriminatory policy of rezoning public land in favor of the agricultural sector,  as well the struggle ensure access to the Asi River for people outside Kibbutz Nir David, all indicate the need to maintain interpretative flexibility within the judicial process. The standard of reasonableness leads to the cancellation and reexamination of thousands of decisions made by bureaucratic authorities, touching on the lives of people living at the bottom of the Israeli social-economic ladder. In fact, this standard is one of the only tools remaining to the court in struggles against government decisions.

Making legal advisors political appointees (positions of trust)

As we will explain in Part B, ministerial legal advisors (including the Office of the State Attorney) have not always  used their authority for the public benefit or the advancement of human rights. Despite this, we believe that transforming ministerial legal advisors into political appointees (positions of trust, in Israeli parlance) would increase the power of  the executive branch to enact detrimental policies at will, and create an opening for government corruption. Legal advisors appointed based on political loyalty would not serve the public, but rather the narrow interests of government ministers who appoint them. We argue below that alternative ways exist to ensure decision-making by legal advisors serve the public interest,  without transforming them into mere political appointments.

b. Mizrahi critique of the judicial system
To understand the legal reforms we believe Israel requires, it is not enough to highlight the dangers of the Levin-Rotman plan.  The existing legal  system itself demands far-reaching change.    Many Mizrachim refuse to identify with protests against the Levin-Rotman plan because the courts have historically supported, and continue to support, policies that discriminate against, exclude and criminalize Mizrachim.  The existing order makes every effort to hide this.

Lack of social diversity among elected judges

The current judicial election process lacks transparency, and generally produces judges from a privileged ethnic background and gender: Ashkenazi Jewish men.  We believe that to correct this state of affairs, the “fair representation” principle must be enshrined as a Basic Law, ensuring representation for  marginalized groups such as women, Mizrachim, Palestinian citizens of Israel, immigrants from Ethiopia and the former Soviet Union, and  members of the LGBTQ community.  The existing training program for judges is further indication of how deep the problem is.  The study program at the Institute for Advanced Legal Training for Judges does not include a track for engaging with human rights, a deficiency that urgently needs correction. 

Judicial acquiescence in social injustice

Public, and specifically Mizrahi, criticism of the courts focuses on specific trends in ruling. Examples include the adoption of arbitrary judicial interpretation regarding obligation enforcement and execution law; narrow interpretation of rights in the context of National Insurance; failure to prevent the authorities from removing children from their homes under the guise of a lack of parental capacity under conditions of financial distress; failure to provide mandatory alternative housing for those evicted from public housing or to make way for urban renewal projects; failure to recognize Mizrahis’ proprietary rights to their homes in distressed neighborhoods (Amal Bet neighborhood, Ha’argazim neighborhood, Abu Kabir, etc.); judicial acquiescence to discrimination in education and failure to protect the principle of educational equal opportunity, as well as the High Court of Justice’s position conditioning educational opportunities on financial means; preserving ruling precedents alongside failure to develop new standards to protect those harmed by over-policing and the criminalization of marginalized populations (and the failure to comprehensively and extensively change the systems of policing, investigation, and prosecution). Additional examples involve rulings that fail to protect exploited temp workers and workers’ rights, including the right to unionize. With regard to Palestinians in the Occupied Territories, the Supreme Court and administrative courts usually back the State’s position, and consistently avoid providing full protection for Palestinians rights in building and planning, in cases of  home demolition and even the eviction of entire communities.  The courts have failed to ensure the rights of Palestinians workers’ in the settlements and in Israel, protect their freedom of movement –including entry into and exit from Israel – or to protect the status and social benefits of East Jerusalem residents. 

Failure to implement the principle of distributive, recognition and restorative justice in the judicial system

The High Court recognized the principle of distributive justice regarding public resources for the benefit of all citizens in its ruling in the case of the Mizrahi Democratic Rainbow Coalition.  Unfortunately, this principle has not been put into practice.   Both the government and the courts have refused to recognize the proprietary rights of public housing residents, residents displaced by urban renewal projects, or those evicted from communities such as Givat Amal and Kfar Shalem. To ensure these rights, the principle of distributive justice must be enshrined in two basic laws:  Basic Law: Human Rights, and Basic Law: Social Rights. 

Over the years Israeli courts have avoided recognition of the State’s responsibility for past and ongoing wrongs.  One salient example is  the disappearance of Yemenite, Mizrahi and Balkan Children. As discussed above, the court rarely offers judicial protection to Palestinians in the Occupied Territories, except in particularly extreme cases.  Even then, the courts prefer to broker a compromise or a demonstration of the State’s “good will.” To change this state of affairs, the principles of recognition justice and restorative justice must be adopted.  The court must summon the courage to cancel Basic Law: Israel as the Nation-State of the Jewish People, as well as  legislation directly or indirectly annexing the Occupied Territories to Israel.

In addition to the above, we call for legislation adopting conventions on international human rights conventions to which the State of Israel is signatory, as well as customary international law. The principle of recognition justice necessitates judicial recognition of and legislation establishing collective rights; this in order to facilitate implementation of a policy incorporating remedies arising therefrom in the areas of social services, health, education, culture, communication, and other fields.

c. The Civic Mizrahi Collective’s recommendations for reform of the judicial system

While the Civic Mizrachi Collective strongly advocates judicial reform, the Levin-Rotman plan is not the answer.  We need measures to advance democracy, equality, justice, and peace, not a constitutional coup d’etat that desbabilizes the democratic order, weakens and politicizes the judicial system, and promotes reactionary values, while abandoning underprivileged groups to ongoing marginalization.

According to media reports, President Herzog has been working behind the scenes to broker a compromise around the Levin-Rotman plan, without consulting opposition leaders. In closed conversations, according to these reports, the President has undertaken  to safeguard human rights and individual liberties, and resist measures that would undermine the independence of the judicial system. We demand that these discussions, held in the President’s residence, give voice to representatives of  civil society representatives, including Mizrahim, Palestinians, and other groups. 

The Civic Mizrahi Collective believes that a true dialogue towards a compromise in constitutional arrangements must include:

(A)  Ensuring full transparency in the judicial selection process as part of Basic Law: The Judiciary.  Guaranteeing fair representation of marginalized groups based on nationality, ethnicity and gender, within the Judicial Selection Committee, and in the election of judges themselves. This is in contrast to representation based on an ideological key of right, center, and left.

(B)   The inclusion of a social/human rights track as part of the training scheme of the Institute for Advanced Legal Training for Judges, to address issues such as distributive, restorative, and recognition justice; over-policing and criminalization of marginalized populations; law and poverty; human rights law and international humanitarian law; individual and collective rights.

(C)   Protection as part of Basic Law: Legislation, that would allow for public participation in legislative processes, including legislation affecting ministerial legal advisors.  The law must ensrhine the principle of public participation in legislative processes for all groups, including the the Arab-Palestinian minority, as well as ethnic, gender, and social minorities. Both Israeli citizens and non-citizens living under Israeli control must be able to voice their opinions on legislation that affects their lives. 

(D)  The enactment of Basic Law: Human Rights and Basic Law: Social Rights, enshrining the principles of equality, distributive, restorative, and recognition justice, as well as collective rights. 

(E)   Limiting both direct and indirect legislative authority to the sovereign territory of  the State of Israel, and immediate revocation of the decision to establish a new settlements administration for the West Bank under the authority of the Minister in the Ministry of Defense.

(F)    Enactment of legislation on the applicability of international human rights conventions in Israel and the Occupied Territories.

Contributors: Prof. Yossi Dahan, Dr. Meital Pinto, Dr. Yael Berda, Dr. Gil Elyassi-Rothschild, Adv. Netta Amar Shiff, Adv. Elinor Arazi, Adv. Ohad Amar