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Lucian Bebchuk & Barak Medina, ביקורת שיפוטית על הרפורמה המשפטית Judicial Review of the Israeli Legal Reform, Tel-Aviv U. L. Rev. F. (2023).

Abstract: Against the background of the legal reform contemplated in Israel, the Israeli Supreme Court would have to reach a decision on an array of petitions that focus on seemingly two separate subjects: (1) the implications of allegations that Prime Minster Netanyahu has breached his conflicts-of-interest arrangement in advancing the legal reform, and (2) the validity of actions adopted, both legislative and administrative, as part of the legal reform. We argue that these two subjects are interconnected, and that the decision in each of them should take the second into account. The 2020 Supreme Court decision, which enabled Netanyahu to serve as Prime Minister despite his criminal indictment, sought to advance two fundamental values: respecting the choice of the parliamentary majority regarding the choice of PM, and protecting the rule of law by requiring Netanyahu to comply with the constraints of a conflict-of-interest arrangement. The governing conflict-of-interest arrangement expressly prohibits any involvement by Netanyahu in initiatives to make changes in the legal system. This paper seeks to identify the way in which the Supreme Court should continue to protect these two values if the Court determines that Netanyahu played a substantial role in advancing the legal reform, and thereby failed to comply with his conflict-of-interest arrangement, and thereby with the obligations imposed on him by the 2020 Supreme Court decision. Such a violation of the conflicts-of-interest arrangement would confront the Supreme Court with the question of how to prevent circumvention of its 2020 decision. We examine this question. We first show that an imposition of sanctions on Netanyahu, including even removal from office, would not be an appropriate remedy to his violating the conflicts-of-interest arrangement. Our thesis is that the best judicial reaction would be to give substantial weight to this violation when considering the validity of any actions taken as part of the legal reform, whether administrative or legislative, that (i) are actions in whose adoption the conflict-of-interest arrangement prohibited any involvement by Netanyahu, and (ii) are actions to whose adoption Netanyahu contributed substantially either directly or indirectly through his support for the legal reform as a whole. In the examination of any action satisfying these criteria, the Court should invalidate the action or at least delay the point in time in which the action becomes effective until after the expiration of the conflicts-of-interest arrangement. The remedy we put forward offers an intermediate approach that would well serve the two values that the 2020 Supreme Court decision sought to protect. The proposed remedy would effectively protect the legal system, while respecting the choice of the parliamentary majority to have Netanyahu serve as PM despite his criminal trial. Because the proposed remedy would protect important interests of the different parts of the Israeli public, it also would serve the goals of strengthening the public legitimacy of, and the public trust in, the courts and the government. Finally, we show that using the proposed remedy would be consistent with existing legal doctrine and case law. Among other things, granting the proposed remedy would be consistent with the authority of courts to enforce prior judicial decisions and prevent circumventions of them, and with the prohibition on the abuse of official power. Furthermore, due to the unique circumstances on which the use of this remedy would be based, using it would not create a precedent for any significant widening of the judicial review of administration and legislative decisions.