Coalition wouldn't appoint judges; basic rights protected

Warning of civil war, Herzog unveils framework for judicial reform; PM rejects it

President says proposal preserves Israel as a Jewish democracy, ensures judicial independence; Netanyahu: It doesn’t bring the necessary balance, Gantz accepts it, Lapid weighs it

President Isaac Herzog presents his proposed alternative framework on the judicial overhaul, on March 15, 2023 (Video screenshot)
President Isaac Herzog presents his proposed alternative framework on the judicial overhaul, on March 15, 2023 (Video screenshot)

President Isaac Herzog on Wednesday unveiled his “People’s Framework” proposal to replace the government’s plans to radically overhaul the judicial system, in a primetime address to the nation in which he urged both sides of the debate “not to destroy the country” in a power struggle over the judiciary, but rather seize the opportunity for “a formative constitutional moment.”

Herzog called his plan, drafted after hundreds of hours of deliberations in recent weeks with politicians, jurists and experts from across the political spectrum, “a golden path” that offers the best chance for a broad national agreement on reform. “This framework protects each and every one of you, the citizens of Israel,” he said. “This framework protects Israel as a Jewish and democratic state.”

He said his framework, if adopted, would constitute a victory for all Israelis. The proposal “is fully obligated to the principles of the Declaration of Independence,” he stressed. “It entrenches the independence and autonomy of the judicial system, and entrenches human rights and civil [for all Israelis], men and women alike, including Israel’s minorities.”

He warned that having heard passionate views on the controversy from hundreds of Israelis in recent weeks, “Those who think that a real civil war, with human lives, is a border we won’t cross, have no idea.” In Israel’s 75th year, “the abyss is within touching distance,” he said. “A civil war is a red line. At any price, and by any means, I won’t let it happen.”

He said he had heard “real, deep hatred,” albeit from “a very small minority of people… I heard from people, from all sides, that, heaven forbid, the idea of blood in the streets no longer shocks them.”

Shortly after Herzog made his offer public, Prime Minister Benjamin Netanyahu rejected it before departing on a visit to Berlin.

“The things the president proposes were not agreed on by the coalition, and central elements of the proposal he offered just perpetuate the existing situation, and don’t bring the necessary balance between the branches of government in Israel,” the prime minister said.

Prime Minister Benjamin Netanyahu speaks to the media ahead of his departure to Germany on March 15, 2023 (Haim Zach/GPO)

Opposition leader Yair Lapid of Yesh Atid congratulated Herzog on his framework, and promised to consider it with “respect for his position, the seriousness with which it was written and the values on which it is based.”

The opposition National Unity party, led by Benny Gantz, by contrast, said it “accepts the president’s framework as one piece” and “as a basis for legislation, instead of the existing dangerous legislative outline” that the coalition is advancing.

The president’s proposed framework, which was published on a new (Hebrew) website as he spoke, addresses critical aspects of the relationship between Israel’s branches of government, including giving greater constitutional heft to Israel’s Basic Laws; how judges are selected; judicial review over Knesset legislation; and the authority of government legal advisers and the attorney general. It would also enshrine some fundamental civil rights in the Basic Laws which are not explicitly protected at present.

Selection of Judges

Under Herzog’s proposals, no branch of government would be able to appoint judges without the input of another branch. The coalition would not have an automatic majority on the committee, as the government’s rapidly advancing legislation proposes, but the judiciary would lose its veto power over appointments as well.

The Judicial Selection Committee would comprise 11 members, in which the government and coalition would have four representatives (three ministers and one MK); the judiciary would have three members (the Supreme Court president and two other judges); the opposition would have two members from two different parties; and the justice minister would appoint two legal scholars to the panel, with the agreement of the Supreme Court president.

Appointments to the Supreme Court and the lower courts would require a majority of seven out of the 11 committee members. This means the coalition would not have the absolute control it seeks over appointing justices, but neither would the justices keep the veto on judicial appointments that they and the coalition have in the current committee.

The Supreme Court president would be selected by the seniority system as is the case today, unlike the government’s proposals – not yet advanced in legislation – to have the Judicial Selection Committee choose the court’s president.

Greater constitutional weight for Basic Laws

Herzog’s framework would institute a rigid system for the passage of Basic Laws, giving them greater constitutional status. Under the plan, Basic Laws would not be subject to judicial review.

Approving a Basic Law would require four readings in the Knesset. The first three could be approved by 61 MKs, but the fourth would need the approval of 80 MKs. Alternatively, the fourth reading could take place in the following Knesset, that is after new elections, and would then need only 70 MKs to approve it.

Any changes to election law would require the approval of 80 MKs in every one of the four readings.

The existing Basic Laws would be “entrenched,” meaning re-legislated with a sizable majority, although the outline published on Wednesday night did not specify how that would happen.

Additionally, Herzog’s plan calls for the passage of Basic Law: Legislation, but the outline does not provide details on that either.

The president’s plan would also enshrine in Basic Law: Human Dignity and Liberty the right to equality and a prohibition on discrimination, as well as the rights to freedom of expression, opinion, protest, and assembly which are not explicitly protected in Israel’s Basic Laws.

A process for drafting a constitution would also be initiated and a bill of rights drawn up “through broad consensus.”

Judicial Review

Judicial review under the president’s framework would be subject to some new restrictions, but they would be far less stringent than those in the government’s current proposals.

The High Court of Justice would be able to strike down Knesset legislation through a two thirds majority of an 11-justice panel. The government’s bill calls for an 80 percent majority of all 15 High Court justices.

Critically, Herzog’s plan does not include any provision for a High Court override which forms a key component of the government’s current legislation, whereby the Knesset can make any legislation preemptively immune from judicial review by a vote of just 61 MKs in three readings, or relegislate a law if the court strikes it down.

The president’s plan proposes, however, to enshrine in a Basic Law an arrangement for military and national service that would not be subject to judicial review. This would essentially allow the Knesset to anchor in the constitution the right of ultra-Orthodox yeshiva students to gain exemptions from IDF service, an extremely divisive issue which has split the country for decades.

The ultra-Orthodox political parties have been implacably insistent that an override clause be included in the judicial overhaul in order to guarantee that the community’s young men need not enlist in the IDF. Herzog’s proposal is designed to address that issue without allowing the Knesset to override the High Court on other issues and rights.

The High Court would continue to exercise judicial review over rights derived from Israel’s Basic Law: Human Dignity and Liberty but not explicitly enumerated in that law. By contrast, the government’s current legislation would prohibit the court from doing so, leaving basic rights such as freedom of expression and freedom of religion unprotected.

Reasonableness

Herzog’s framework would bar the High Court from using the judicial test of reasonableness to reverse government resolutions and policy decisions, and the appointment of ministers.

This has been a key complaint of the right-wing against the legal system, most prominently in the High Court’s recent decision barring Shas leader Aryeh Deri from ministerial office.

The court would still be able to use the reasonableness test regarding ministerial policy decisions, and over the actions of other state institutions and agencies, such as local municipal councils and state authorities.

Government legal advisers

The president’s new judicial and legal framework would preserve the status of government legal advisers as professional civil servants under the aegis of the Justice Ministry, unlike the government’s plans to turn them into political appointees.

Proponents of the government’s overhaul plan chafe at the intervention of the attorney general and ministerial legal advisers, who they argue to easily and frequently override the policy initiatives of elected ministers since their written positions are binding on the government.

In a nod to this concern, Herzog’s plan proposes that a ministerial legal adviser could be removed from office if they have substantive and ongoing disagreements with the minister, subject to the approval of a special committee.

The stated positions of the attorney general and the ministerial legal advisers would, however, continue to be binding. But in another attempt to address the concerns of the judicial overhaul advocates, a minister would be able to obtain independent counsel in legal proceedings in which his ministry is involved if the attorney general or ministerial legal adviser opposed the minister’s position.

This is currently impossible under the current system, without the approval of the attorney general.

A defining moment

“We are in the midst of a deep and worrying crisis,” Herzog said during his speech presenting his new framework. “But I really believe with all my heart that today we also face a major, historic opportunity.”

He called his plan “an opportunity for a balanced, smart constitutional arrangement and an agreement on the relations between the branches of government in our Jewish and democratic country, in our beloved country.

“We are at a crossroads: a historical crisis or a defining constitutional moment.”

He said the IDF had to be kept out of the political disputes, and that there was no place for refusal to serve.

And he said most Israelis support a framework for judicial reform “that will bring both justice and peace, most Israelis want a balanced framework that will set out once and for all the balance between the branches of government, most Israelis want a broad agreement, and most Israelis want to live safe and good lives.” His framework, he said, meets those needs. “It’s not a presidential framework; it’s the people’s framework… a victory for all of Israel.”

Last week, Herzog denounced the government’s current judicial overhaul legislation as “oppressive” and harmful to democracy, and called for it to be abandoned immediately and replaced by a framework for consensual reform.

The president said in that address that the national crisis over the coalition’s effort to weaken the judiciary was “a disaster” and “a nightmare.” He insisted it was the responsibility of “the leaders of the state” in the government to put aside the breakneck legislative charge lest the country descends into a societal and constitutional abyss.

Most Popular
read more: