'There is behind-the-scenes agreement on most things'

Herzog says Israel ‘closer than ever’ to compromise agreement on judicial overhaul

President says current reform ‘endangers’ democracy, but closed-door meetings have made progress; doesn’t urge halt to legislation, but opposition responds that this is a must

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

President Isaac Herzog at a conference of the 'Besheva' group in Jerusalem, on February 21, 2023.(Yonatan Sindel/Flash90)
President Isaac Herzog at a conference of the 'Besheva' group in Jerusalem, on February 21, 2023.(Yonatan Sindel/Flash90)

President Isaac Herzog said on Monday “behind-the-scenes” talks were moving ahead and that the sides were “closer than ever” to reaching a compromise agreement on the contentious judicial overhaul being pushed by the government that has polarized Israeli society over the past two months.

“We are closer than ever to the possibility of an agreed-upon framework,” Herzog said, without specifying who was involved in negotiations. His remarks were made during an “emergency meeting” his office hosted to seek the support of nearly 100 Israeli mayors and local authority leaders in pushing for political compromise.

“There are behind-the-scenes agreements on most things. They make sense and they are reasonable,” he added, while also cautioning that failure to temper the current reforms threatens democracy.

In response, opposition party leaders Yair Lapid and Benny Gantz reaffirmed their demand that the coalition halt its legislative march before dialogue can take place.

“In order to have honest and effective dialogue that will lead to preserving democracy and national unity, [Prime Minister Benjamin] Netanyahu must announce a complete, comprehensive, and actual halt to the legislative process,” they say in a joint statement. “All attempts at shortcuts are a violation of real communication,” the two say in a joint statement.

The Israeli presidency is expected to operate above the political fray, and Herzog has been careful to position himself as a facilitator and mediator rather than a decision-maker, in his attempt to forge agreements between Netanyahu’s coalition and the opposition.

President Isaac Herzog speaks to local authority heads at the president’s residence on March 6, 2023 (Haim Zach / GPO)

Since making a rare, forceful public call for dialogue three weeks ago, Herzog has held closed meetings with leading reform lawmaker Simcha Rothman and opposition leaders Lapid and Gantz. The president has also hosted civil society organizations to discuss reform possibilities and spoken quietly with a number of politicians.

Providing only superficial details of the developing framework, Herzog said it would provide solutions “for both sides” of the political debate. While the coalition argues that its planned changes are necessary to constrain an activist judiciary as part of “rebalancing” state power, opponents argue that stripping Israel of its main check against political power — independent courts — will erode its democracy.

Tens of thousands of Israelis protest against plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system, in Tel Aviv, March 4, 2023. (AP Photo/Tsafrir Abayov)

According to Herzog, among the principles included in the plan are: diversity of the judiciary; creating “constitutional foundations,” important because Israel lacks a formal constitution; anchoring a “healthy” balance among state authorities; preserving the independence of the courts; protecting human rights; and maintaining Israel as “a Jewish and democratic state, based on the principles of the Declaration of Independence.”

Channel 12 reported that Herzog plans to present a highly detailed plan to the sides in the coming days in order to force them to come to the table. The unsourced report said that under the president’s proposal, the government will not be given a clear majority in the judicial appointments panel, as is the case in the coalition legislation on the matter.

Herzog has convened a panel of academic experts who have helped him craft the compromise proposal. Channel 12 said that the experts have closed many of the gaps between them in recent days, as they seek to produce a format that could be acceptable to both sides.

The report said the experts include members of the conservative Kohelet Policy Forum, which is believed to have inspired many of the coalition’s current proposals, but did not provide details on any other members.

The network said Herzog is hoping to get both the coalition and opposition on board with his proposal. If they do, the language from his draft could simply replace the language of the coalition’s legislation during bill markups. This would allow the sides to overcome the coalition’s refusal to halt the legislative process to give way to negotiations, according to Channel 12.

Herzog’s panel of academics has also been discussing the coalition’s demand that there be unanimous agreement from all 15 judges in order to strike down Knesset legislation, the report said. The academics have instead proposed that only 10 or 11 judges would be needed but have yet to reach an agreement, Channel 12 said.

The president does not know if he will be able to gain the support of opposition leaders, given the intense public protests, the report said. But he is hoping to enlist support for his compromise proposal from those who have until now heavily criticized the government’s overhaul efforts, including former Bank of Israel chief Yaakov Frenkel, Israeli tech leaders, ex-Supreme Court presidents and members of Benny Gantz’s center-right National Unity party.

A senior Likud official told Channel 12 that Netanyahu has expressed interest in reaching a compromise but is concerned about whether Justice Minister Yariv Levin will go along with it. Netanyahu reportedly was set to announce last week that he was pausing the controversial legislation to make room for negotiations, but held off on making the announcement because Levin threatened to quit. The justice minister has warned that stopping the legislation could lead to the collapse of the coalition.

Last week, Channel 12 reported that Herzog’s developing discussions covered a framework for changes to how judges are appointed and how the Knesset legislates quasi-constitutional Basic Laws, both core elements of the coalition’s plan.

According to the report, neither judges nor the coalition would have automatic vetoes as part of the Judicial Selection Committee. Today, both political and professional camps have to agree on the appointment of Supreme Court justices, but judges and lawyers can overrule politicians for lower court appointments.

Furthermore, the working framework touched on fortifying Basic Laws, which today are largely passed and amended with a simple majority. And, the Knesset would be able to override a court ruling or provide immunity against a law being struck down if it is backed by a broad and intentional swath of MKs.

Herzog did not echo on Monday opposition politicians’ calls for the coalition to halt its legislative blitz as a precondition for dialogue. The president advocated taking a pause in February to allow for conversation, but sources close to the matter deny that the president ever set that as a condition for dialogue.

As the coalition continues its legislative blitz to increase political power at the expense of the judiciary, despite nine straight weeks of protests and criticism from the attorney general, Supreme Court president, and economic leaders, Herzog warned that Israeli democracy and society may suffer.

Prime Minister Benjamin Netanyahu (left) with Justice Minister Yariv Levin during a discussion and a vote in the Knesset, Jerusalem, on March 6, 2023. (Yonatan Sindel/Flash90)

“The reform, as it currently stands, endangers the democratic foundations of the State of Israel,” Herzog said. The president also cautioned that the widespread and tense debate about overhauling the judiciary has created “one of the most difficult moments that the State of Israel has ever experienced.”

“We are in a historic crisis that threatens to destroy us from within,” the president said, echoing politicians and civil society leaders pointing to “rips” in Israeli society, highlighted and exacerbated by the reform debate.

Putting the onus on the coalition and opposition to “rise to the significance of the moment” and to “understand the terrible alternative,” Herzog said that they should “put the country and the citizens above everything” and work toward a framework for meaningful reform.

Herzog said he had “a certain set of tools” at his disposal, and would “if necessary go further” to advance his efforts to forge a compromise — in what was apparently an indication that he might publicly present a detailed proposal for reform in the near future if coalition and opposition do not engage in dialogue.

National Union party leader Benny Gantz, however, was quick to reiterate his demand that the coalition halt legislation before entering into dialogue, so as not to use the talks as a fig leaf for unsubstantial compromise.

Leader of the National Unity party MK Benny Gantz speaks to the media at the Knesset on March 1, 2023. (Yonatan Sindel/Flash90)

“It all depend on one simple thing – stopping the legislative process and reaching a dialogue,” he said at a Knesset event, in response to Herzog’s statement. “When that happens, everything will happen, and if it doesn’t, nothing will happen,” Gantz, considered the opposition’s most bullish voice on reaching compromise, added.

Last week, two of Gantz’s senior party politicians signed an open letter with two veteran Likud lawmakers to call for dialogue. On Sunday, one of those MKs — Chili Tropper, known to be close to Gantz — publicly claimed that Likud had approached his party to discuss joining the coalition.

Modiin Mayor Haim Bibas, influential in internal Likud party politics and head of the Federation of Local Authorities, said on Monday that he supports “immediate dialogue” on judicial reform.

“We have come to you,” Bibas told Herzog, “local government heads, to stand alongside you and support immediate dialogue, to call all the leaders of the country to take responsibility.”

“All eyes are on you,” Bibas said to the Knesset and cabinet. “Leave everything aside, come here, go into room for two or three weeks and talk to solve the problem,” the mayors’ council head said, warning that nothing else matters “if there’s a civil war.”

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