Israel Beytenu Proposes Separate Constitutional Court to Resolve Judicial Crisis

Legal experts predict that Israel's Supreme Court (High Court of Justice) is likely to invalidate recent amendments to the Basic Law concerning the Judicial Selection Committee, citing concerns over the politicization of judicial appointments. Except for justices Noam Sohlberg and David Mintz, who oppose the court's authority to annul Basic Laws, the majority of justices are expected to support this view. This ruling could have broader implications, potentially threatening the validity of other reforms such as the new Police Investigations Department law and changes related to the Public Complaints Commissioner for Judges.

Supreme Court President Justice Isaac Amit appears to anticipate a coalition defeat in upcoming elections and is raising the stakes by assuming Prime Minister Netanyahu will avoid a direct confrontation with the court. Amit argues that as long as government legal advisor Gali Baharav-Miara remains in office, defying Supreme Court rulings would be a risky gamble, given her authority to enforce compliance across public institutions.

In response to this stalemate, Israel Beytenu has proposed establishing a separate constitutional court whose members would be elected by the public, distinct from the current Supreme Court, which combines professional and political judicial functions. This model aims to circumvent the court's politicization argument by creating a court explicitly designed to handle constitutional and political questions, with judges serving fixed terms to reflect societal changes.

If the next Knesset adopts this proposal, and assuming a less confrontational legal advisor replaces Baharav-Miara, the government could transfer constitutional review powers from the Supreme Court to the new constitutional court. This shift would address the ongoing constitutional crisis by clarifying which judicial authority the public and government should obey, potentially avoiding institutional clashes and preserving the rule of law.

Professor Moshe Cohen-Eliya, a constitutional law expert and founder of the "Foundation of the Land" research institute, suggests this approach offers a realistic solution to Israel's persistent constitutional conflict by grounding judicial authority in democratic legitimacy.