‘A bad plan’: Think tank, legal scholars reject Friedmann overhaul compromise

Israel Democracy Institute and Israeli Law Professors’ Forum for Democracy argue judicial review would be too limited and gov’t would have too much sway in legislating Basic Laws

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Thousands of Israeli protesters rally against Israeli government's judicial overhaul legislation in Tel Aviv, March04, 2023. (Gili Yaari /Flash90)
Thousands of Israeli protesters rally against Israeli government's judicial overhaul legislation in Tel Aviv, March04, 2023. (Gili Yaari /Flash90)

The Israel Democracy Institute has sharply criticized a compromise plan for judicial reform suggested by former justice minister Daniel Friedmann and others, saying it adopts almost all of the government’s proposals and would severely damage Israel’s democratic character.

The Israeli Law Professors’ Forum for Democracy, an association of senior legal scholars at top Israeli universities, also panned the Friedman plan, saying like the IDI that it adopted too much of the government’s legislative plan to be considered a compromise.

On Tuesday, Friedmann, together with several other prominent public figures, published a plan which moderated some aspects of the judicial overhaul legislation being advanced by Justice Minister Yariv Levin and MK Simcha Rothman.

The Friedmann plan would give the coalition and opposition equal representation in the committee that appoints judges, allowing each side to pick a judge without the other’s consent, and would somewhat moderate the government’s radical plans to virtually eradicate judicial review of legislation and allow the Knesset to easily circumvent or override High Court decisions.

“The ‘moderation’ to the Rothman-Levin proposals is only in appearance, and does not provide protection from total coalition control of the legal system,” the IDI said in a statement to the press.

The institution said the proposed makeup of the Judicial Appointments Committee would “almost totally politicize the selection of judges in Israel,” and would reduce the professionalism and independence of the judiciary.

Former justice minister Daniel Friedmann attends a Constitution, Law and Justice Committee meeting at the Knesset in Jerusalem on July 9, 2017. (Yonatan Sindel/Flash90)

The IDI noted that the Friedmann plan would allow the government to pass a Basic Law with a majority of just 61 MK (albeit over the course of two Knessets if the law does not receive at least 70 votes), and also bars the High Court of Justice from exercising judicial review over Basic Laws.

“The implication is that the coalition would have unrestricted power to enact Basic Laws, and the High Court won’t be able to intervene,” the think tank asserted, saying that the restriction requiring a Basic Law that did not gain 70 votes to be approved by a subsequent Knesset was not sufficient protection for the key rights enlisted in the Basic Laws.

The IDI also criticized the Friedmann plan’s proposals to limit judicial review over regular legislation to situations in which three-quarters of an entire 15-justice panel of the High Court strikes down a law.

“The plan reduces to a minimum, if at all, the chances for effective judicial review,” said the IDI. It added that the 65 MKs required for the Knesset to override a High Court decision striking down legislation was too low and that there was no policy arena where the Knesset could not override the High Court.

Such a framework, said the IDI, does not exist anywhere else in the world and “makes judicial review almost irrelevant and makes human rights dependent on the will of the regime.”

The institution also insisted that the Friedmann plan’s proposals for limiting the authority of government legal advisers and reducing the scope for the use of the judicial test of reasonableness went too far in the government’s direction.

Prof. Yaniv Roznai at a ToI Live event in Jerusalem’s Israel Democracy Institute, December 15, 2022. (Oded Antman/IDI)

The Israeli Law Professors’ Forum for Democracy similarly rejected the Friedmann plan as almost identical to the principles of the government’s legislation.

“The important and core points [of the Friedmann plan] accept the essence of the changes to the system of government offered by Levin and Rothman, including judicial appointments, judicial review, the override clause, reasonableness and the standing of legal advisers,” the organization said in a position paper on Wednesday.

“Concession over these points would create the infrastructure for the violation of human rights, for the violation of judicial independence, for the partisan politicization of the judicial authority, and for fatal damage to the character of Israel as a democratic state,” wrote the forum, and concluding that the document could not be a basis for compromise.

Prof. Yaniv Roznai, a constitutional scholar at Reichman University and a member of the forum, added on Twitter that the Friedmann plan did not sufficiently protect Basic Laws from political abuse and “castrates” judicial review.

“A constitutional crisis is preferable to a bad plan, and a reasonable plan which we can live with is preferable to a constitutional crisis,” said Roznai.

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