ISRAEL AT WAR - DAY 147

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Sa'ar: It's the same proposal in a Purim costume

Government tentatively welcomes judicial overhaul compromise, opposition unimpressed

Proposals made by ex-justice minister Friedmann and others moderate plans to take control over judicial appointments and to radically restrict judicial review by High Court

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

File: Former Justice Minister Daniel Friedmann (R) speaks with former Supreme Court president Aharon Barak at a hearing of the Knesset Constitution, Law and Justice Committee, July 9, 2017. (Yonatan Sindel/Flash90)
File: Former Justice Minister Daniel Friedmann (R) speaks with former Supreme Court president Aharon Barak at a hearing of the Knesset Constitution, Law and Justice Committee, July 9, 2017. (Yonatan Sindel/Flash90)

A compromise proposal for the judicial overhaul imbroglio put forward by several prominent public figures including former justice minister Daniel Friedmann and former national security adviser Giora Eiland has been tentatively welcomed by some government figures, including Justice Minister Yariv Levin.

The proposition would significantly moderate some of the government’s current proposals on critical issues such as the balance of power over judicial appointments and the Knesset’s ability to override a decision by the High Court of Justice to strike down legislation.

The compromise plan would bar the High Court from exercising judicial review over Israel’s quasi-constitutional Basic Laws, but would give them greater status and require broader consensus for passing or amending them than is currently required.

Levin has said that the proposal is “the first plan which is [thinking] out of the box” and which “goes in the right direction,” and that he will examine it, according to the justice minister’s office.

And Cabinet Secretary Yossi Fuchs tweeted on Tuesday that the plan was “serious” and “the basis for negotiations over the core issues” regarding the judicial overhaul plan, but said it was not acceptable “as is.”

Eiland stressed, however, that the proposal would have to be accepted without “manipulative alterations.”

Opponents to the government’s reforms bitterly criticized the new proposal, with former justice minister and National Unity MK Gideon Sa’ar describing it as “the same [proposal] in a Purim costume.”

Former National Security Adviser Giora Eiland in 2022 (Video screenshot; used in accordance with Clause 27a of the Copyright Law)

The proposal was authored by Friedmann, a long-time advocate of judicial reform, together with Eiland, former deacon of the Kiryat Ono College legal faculty Yuval Albashan, and prominent hi-tech businessman Giora Yaron.

There was some dispute over who initiated the plan. Eiland told Channel 12 Wednesday that Rothman had requested that Friedmann put together the compromise proposal. Rothman denied it, saying only that during a previous conversation with Friedmann on the latter’s criticism of the current legislation, Rothman had told him he was free to bring his own proposal to the table. Eiland later walked back the claim, telling Ynet that Friedmann and others had pushed for the meeting with Rothman at their own initiative.

According to their framework, judicial appointments to the Supreme Court would only be possible through consensus between the representatives of the government, the judiciary and the opposition.

This would represent a significant moderation over the coalition’s legislation whereby the government would have complete control over all judicial appointments in the country, including the Supreme Court.

Overhauling the judicial appointments process is one of the central pillars of the government’s plans, and so a less radical reform would be a key step in generating a compromise that the opposition could agree to.

The Friedmann plan proposes two options for judicial appointments. The first would create an 11-member Judicial Selection Committee, with six members coming from the government and coalition, two from the opposition and three from 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)

An appointment to the Supreme Court would require a majority of eight out of the 11 members, meaning no branch of government would be able to make appointments without the input of another branch.

The government’s current legislation would by contrast give the coalition an in-built majority to appoint all judges, including to the Supreme Court, without the votes of the judiciary or the opposition.

The second option proposed by the Friedmann plan would give the coalition, opposition and judiciary four representatives each on a 12-member committee, but where the judges would be observers only with no voting power for Supreme Court appointments.

Appointments to the Supreme Court would be made in pairs, with one position filled by the coalition’s choice and one by the opposition. The Supreme Court president would be able to veto one choice of the coalition and opposition once in every Knesset term, that is, until new elections.

Appointments to the magistrate’s and district courts would be made by a majority of seven out of 12 committee members and would require the support of two coalition representatives, two from the opposition, and three judges.

The Friedmann plan’s proposals restricting judicial review over legislation are also more moderate than the legislation currently being advanced by the government.

Knesset Constitution, Law, and Justice Committee chairman Simcha Rothman (L) and Justice Minister Yariv Levin attend a committee hearing, January 11, 2023. Yonatan Sindel/Flash90

Under the plan, regular government legislation would be subject to judicial review by the High Court but a decision to strike down a law would require a three-quarters majority of a full 15-justice panel, similar to the government’s proposal for an 80 percent majority.

But whereas the government’s legislation allows the Knesset to preemptively immunize legislation from judicial review altogether with a majority of just 61 MKs, available to every coalition, the new plan would only allow the Knesset to re-legislate a law after it was struck down by the High Court, with a slightly higher majority of 65 MKs.

Under the Friedmann plan, a law could be re-legislated with just 61 MKs but it would only come into effect six months after the election of a new Knesset.

Basic Laws would not be subject to judicial review by the High Court, as proposed by the government, but unlike the government’s plans, Basic Laws would require four Knesset readings instead of three and a majority of 61 MKs in every reading.

If a Basic Law or amendment garnered less than 70 MKs, or involves changing the election system, the fourth reading would need to be held after the next general election and in the new Knesset that emerged as a result.

These modest changes over the government’s legislation might provide some protection from the abuse of Basic Laws for narrow political or ideological purposes.

The Friedmann plan also proposes more moderate reforms to the institution of government legal advisers.

Whereas the government’s proposals, not yet advanced to the legislative process, would turn professional legal advisers under the aegis of the Justice Ministry into political appointees appointed by a minister, such advisers would remain professional civil servants under the Friedmann plan.

Like the government’s proposals, however, their opinion on legislation and administrative decisions would be non-binding on the minister, and the government department in question could seek alternative counsel without the consent of the attorney general in the event that the legal adviser opposed the position of the minister.

The Friedmann plan would also reduce the use of the judicial tool of reasonableness to review government decisions, but would not eliminate it as the government has proposed.

Under the new proposal, administrative decisions would still be subject to the reasonableness test, but could not be used to annul government appointments or those made by the Knesset, or over the allocation of government resources.

Former Justice minister MK Gideon Sa’ar speaks during a Menachem Begin Heritage conference at the Bar-Ilan University in Ramat Gan, January 17, 2023. (Tomer Neuberg/Flash90)

Sa’ar rejected Friedmann’s package, however.

“It is easy to see why Levin and Rothman favor the Friedmann plan: the politicization of judicial appointments, an extremely high bar for judicial review, legal advice which does not obligate the government,” tweeted Sa’ar.

“I just find it hard to understand why some people are calling it a compromise. It’s the same woman in Purim costume,” he said, referring to the holiday celebrated Tuesday in which dress up is a key element.

Former prime minister Ehud Barak, another strident opponent of the government’s judicial overhaul, made similar comments.

“Regime change in a Purim costume,” he tweeted.

“The Friedmann-Albashan plan was born with good intentions but its results are a smoke screen which will allow Levin/Rothman to remove their negotiating chips from the legislation and still ensure total control over judicial appointments, immunizing Basic Laws [from judicial review] and an override of 61 MKs. Netanyahu and the president might adopt it. The protest movement and the opposition must reject it,” continued Barak.

Eiland himself described the plan he co-authored as “the lesser of two evils,” but said he hoped Levin and Rothman could accept it, in an interview with Ynet.

He added that the proposal must be accepted “as is” and without “manipulative alterations,” otherwise he would return to opposing the government’s plans and legislation.

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