The government’s proposed reform to Israel’s judicial system is not monolithic, and the public does not ascribe the same importance to all of its components. A survey by ‘Globes" and research firm Shiluv attempts to understand in greater depth what the public knows about the proposed reform, what it knows about the current situation, before the changes, and what it thinks of the various compromise proposals - see the Methodology below.
The survey was first published, in "Globes" Hebrew newspaper, on February 3. It is republished now, and in English, in the light of President Herzog’s five principles for a compromise on judicial reform that he set out yesterday evening.
In general, the results show that the public supports changes to the legal system, but not necessarily those proposed by Minister of Justice Yariv Levin. At the same time, on most items, the public also does not support continuation of the existing situation.
While on the striking down of laws by the Supreme Court there is a majority against change, or in favor of slight change, there is a clear majority against the existing custom of the president of the Supreme Court being chosen on the basis of seniority. On the term of office of the president of the Supreme Court, the public actually goes further than Levin. On the question of how Supreme Court justices should be appointed, no compromise proposal wins substantial support.
In the detailed survey results below, in each case the first possible response reflects Levin's reform proposal and the last reflects the existing situation.
Striking down laws
On the question of the Supreme Court’s ability to strike down laws legislated by the Knesset, only 25% of the public support the government’s proposal that the court will be able to strike down only regular laws, and not laws designated as basic laws, by a majority of 75% of all the justices. A further 15% are against any power to strike down laws. Together, these two groups amount to 40%.
Against them are two groups. The compromise that garners the most support (39%) is one that gives the Supreme Court the power to strike down any law by a majority of two-thirds of the justices. 16% support the existing situation, that is, the power to strike down any law, without a special majority. Altogether, this amounts to 46% of the public in favor of leaving things as they are or introducing a fairly slight change.
Two points are worth mentioning: among respondents who describe themselves as "right-wing", only a third support the government’s proposal, but 27% of them go further and support denying the Supreme Court any power to strike down laws.
In your opinion, should the Supreme Court:
Be able to strike down only regular laws, not basic laws, by a majority of 75% - 25%
Not be able to strike down laws at all - 15%
Be able to strike down any law by a two thirds majority - 30%
Be able to strike down any law without a special majority - 16%
Don’t know - 15%
Judicial appointments
Respondents were offered five possibilities for the method of appointing judges. Here too, there is a minority (18%) that supports the existing situation: appointment by a committee composed of two government ministers, two members of the Knesset, two representatives of the Israel Bar Association, and three Supreme Court Judges. Two aspects of the current system were not stated to the respondents, namely that by tradition the two Knesset members are one from the coalition and one from the opposition, and the rule that in order to be appointed to the Supreme Court a candidate needs the votes of seven of the nine members of the committee, or two fewer than the number actually present at the committee session (six out of eight or five out of seven). In effect, this gives both the three coalition representatives (two ministers and one Knesset member) and the three judges (if they act in unison) a veto over appointments, but not the power to force through their choices.
On this issue, the government’s proposal receives only 17% support. This proposal would expand the committee’s membership to eleven, and change its composition such that at least seven members would be members of the coalition or appointees of the minister of justice.
Three compromise ideas were presented to the respondents, but none received more than 16% support.
In your opinion, what is the appropriate composition of the judicial appointments committee in Israel?
Three Supreme Court judges, three ministers, two representatives chosen by the minister of justice, three heads of Knesset committees of whom one is from the opposition - 17%
Three Supreme Court judges, two ministers, one Knesset member from the coalition and one from the opposition - 16%
Representatives of the coalition and the opposition, with a majority for the coalition - 11%
Representatives of the coalition and the opposition in equal numbers - 15%
Two ministers, two Knesset members, two Bar Association representatives, and three Supreme Court judges - 18%
Don’t know - 23%
Appointment of the president of the Supreme Court
9% of the respondents support the appointment of the most senior Supreme Court justice as president of the court. This is the present method, but that fact was not stated to the respondents.
About a quarter of the respondents support the government’s proposal whereby the appointment would be in the government’s hands after a public hearing in the Knesset, and that it should be possible to appoint a president of the Supreme Court who is not a sitting judge.
Among the compromise proposals presented, one garnered fairly large support (35%). This was that the president should be chosen by the judicial appointments committee from among the sitting Supreme Court justices.
30% of self-designated right-wing respondents supported choosing the president of the court from among the sitting justices.
What in your opinion is the appropriate way of appointing the president of the Supreme Court?
By the government, with approval of the Knesset after a publicly broadcast interview, not limited to sitting justices - 23%
By the judicial appointments committee, and only from among sitting justices - 33%
By the judicial appointments committee, not limited to sitting justices - 15%
By seniority - 9%
Don’t know - 20%
Override clause
A further question dealt with allowing the government to initiate reenactment of a law struck down by the Supreme Court (the override clause). This is the only instance in which the choice that received the most support (29%) is also the existing situation: the government may not do so. To be more precise: it can try, but then the Supreme Court will presumably strike down the law again on the same grounds as it struck it down in the first place.
A softer proposal than the one promoted by the government also gained substantial support (25%). This suggests requiring a majority of 70 Knesset members (out of 120), including ten from the opposition, in order to reenact a law that has been struck down.
Only 21% of the respondents support the government’s proposal that the votes of just 61 Knesset members should be enough to reenact a law that has been struck down.
Among Arab respondents, 40% oppose the override clause, a substantially larger proportion than among Jewish respondents.
Should the government be able to reenact laws struck down by the Supreme Court?
Yes, by a majority of 61 members of Knesset - 21%
Yes, by a majority of 65 members of Knesset - 11%
Yes, by a majority of 70 members of Knesset, including ten opposition members - 25%
Not at all - 29%
Don’t know - 14%
Reasonableness test
Should the Supreme Court be able to annul government decisions? This is the "reasonableness test", a more complicated issue, and one that does not relate to the Supreme Court alone, but for the sake of simplicity the question was only about the Supreme Court.
The government’s view, that this is not the Supreme Court’s function, won fairly small support, at 19%. The greatest support (28%) was for a proposal whereby the court should be able to intervene in government decisions, but only in the most extreme cases and on special grounds. Since it would be up to the Supreme Court itself to decide whether the case was extreme enough to warrant its intervention, this is actually only a slight variation on the existing situation, in which there is no limitation.
Adding together those who support leaving the existing position as it is (24%), those who support intervention in very extreme cases only (28%), and those who support intervention only in cases in which human rights are infringed (17%), give a clear majority (69%) against complete abolition of the cause of unreasonableness as grounds for judicial intervention in administrative decisions.
Should the Supreme Court be able to annul government decisions?
No, that’s not its job - 19%
Yes, but only when human rights are infringed - 17%
Yes, but only in extreme cases on special grounds - 28%
Yes, if the judges think that the government’s decision is unreasonable - 24%
Don’t know - 12%
Methodology
Among the reasons that Shiluv was chosen to carry out the survey was the fact that it does not carry out surveys of support for political parties and does not work for politicians. We were particular about this point out of a desire to make the survey more reliable and to neutralize claims of political bias. All "Globes" opinion surveys include the Arab population, and this one is no exception.
The possible responses were presented to the respondents randomly, that is, without disclosing which were part of the government’s planned reform, which represented the existing position, and so forth. The survey, by Shiluv, which is headed by Israel Oleinik, covered 507 men and women aged 18 and over, in a national, random and representative sample of the residents of the State of Israel, in a special Internet survey based on a computerized survey system. The survey was carried out between January 31 and February 1, 2023, from the Internet users’ panel iPanel. The maximum sampling error is +-4.4%.
What we sought to examine
The survey attempts to give a slightly deeper understanding of what the public knows about the government’s proposals for reform of the legal system, what it knows about he current situation, before any changes, and what it thinks about various compromise proposals. Among the choices of answers to each of the various questions, there was always one representing the current situation, but this was not explicitly mentioned to the respondents.
The survey first of all presented to the respondents the main points of the government’s proposed reform and asked for their stance. On this question, the results are almost identical to the answers to the same question the previous week: 42% don’t support the reform at all; 22% support some items; 19% support all items; and 17% don’t know or have no view.
The survey then asked about the reform proposals individually. There is not always a connection between support for or opposition to the reform in general and the views expressed about each item separately.
Published by Globes, Israel business news - en.globes.co.il - on February 13, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.