ISRAEL AT WAR - DAY 144

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Op-EdOnly one man can stop the 'march into the abyss'

Worried Herzog sets out sensible ideas for reform, but is Netanyahu ready to listen?

The president’s proposals for judicial change, unveiled in a plaintive speech to the nation, are nuanced, constructive… and utterly at odds with the coalition’s agenda

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

President Isaac Herzog delivers a message to the nation from his office in Jerusalem, February 12, 2023. (Haim Zach/GPO)
President Isaac Herzog delivers a message to the nation from his office in Jerusalem, February 12, 2023. (Haim Zach/GPO)

Emotional and earnest, President Isaac Herzog on Sunday night set out five largely reasonable and commonsense proposals for Israeli judicial change, and implored the hard-right coalition of Prime Minister Benjamin Netanyahu to adopt them as a basis for consensual, negotiated reform, in place of the radical overhaul that the government is preparing to start blitzing through the Knesset on Monday.

Herzog said he was attempting to intervene because millions of Israelis, from across the political spectrum, fear that the country is being torn apart, “marching into the abyss,” given the bitter disunity triggered by the coalition’s proposed legislation. “We’ve long moved past a political argument,” he warned, “to the brink of a constitutional and societal collapse.”

“Violent confrontation” looms at home, to the delight of Israel’s enemies abroad, he said. “The powder keg is about to explode, and brother to raise his hand against brother.”

He acknowledged that the demand for judicial reform “did not come out of nowhere,” and cited a lack of diversity among Israel’s High Court justices, a sense of “lines crossed,” and of broken trust in judicial protection that reached its apogee at the time of the 2005 disengagement from Gaza.

But the ostensibly corrective cocktail unveiled last month by Netanyahu’s Justice Minister Yariv Levin, Herzog indicated, is credibly seen by millions of Israelis, and vast numbers of Diaspora Jews and supporters of Israel overseas, as a genuine threat to Israeli democracy. “They fear that in its current form, it obliterates and uproots the balances and the brakes” between Israel’s branches of governance, “and there will be nobody to protect the citizen from the might” of the elected majority.

Israel’s legal system, the president declared, “is the glory of Israel.” Its courts and judges “protect Israeli society and the state, truly, against crime, against external [legal] attacks on IDF soldiers, against the loss of the principles of justice, law and morality, and against the trampling of individual rights.” Those protections, he insisted, must be maintained.

The president’s proposition

Two of Herzog’s five proposals relate to the inadequate number of judges in Israel, the burden on the courts, the backlog of cases, and a consequent public loss of faith in the basic efficiency of the system — concerns that the coalition has frequently raised in defense of its planned overhaul, but that its intended shakeup does not address.

His other three proposals, however, went to the heart of Levin’s overhaul — and defanged it.

Where the government aims to make it almost impossible for the justices to strike down laws, and very simple for the coalition majority to re-legislate them, Herzog set out more sensibly and delicately balanced mechanisms. But he also presented a more foundational change: to legislate a new “Basic Law: Legislation” that would, belatedly, anchor Israel’s entire legislative process and bring “constitutional stability” to our 75-year-old state.

To pass, this and other quasi-constitutional Basic Laws would require four Knesset readings, rather than the current three, and wider support in parliament than ordinary laws. Since they would be more consensual — and not easily changed; unlike in the current reality — they would not be subject to judicial oversight, he suggested. But Basic Law: Legislation would also establish, for the first time, the High Court’s right to intervene in non-basic laws.

Whereas the coalition’s proposals would altogether deny the High Court the tool of “reasonableness” to weigh the legality of laws and decisions, Herzog proposed that it be limited — so that there is not “disproportionate” intervention in the executive and legislature.

And crucially, where the coalition intends to award itself a majority on the committee that selects the justices — cementing its near-absolute control of the judiciary — Herzog proposed a system to ensure “equality and balance” between the three branches of government, with no built-in majority for any one of them, and justices selected via cooperation and agreement, not capitulation and veto.

The president said he had constructed this framework after innumerable consultations with a wide variety of interlocutors from across the spectrum, and was confident it could form the basis of genuinely constructive legal reform acceptable to all sides.

With that in mind, he pleaded with Levin and with Simcha Rothman, the chair of the Knesset’s Constitution, Law and Justice Committee, to abandon their plans to bring parts of the legislative package to a first reading in the Knesset as soon as Monday, and instead look carefully at his alternative proposition. He naturally made no direct mention of Netanyahu, since the prime minister is legally barred from any role in legislation and decision-making on such matters, as part of the conflict of interest arrangement agreed in 2020 that enables him to lead the state even while he fights for his innocence in his ongoing corruption trial.

The President’s Residence is open and available “at all hours” to host debate and discussion between the sides, Herzog declared, and he would be more than ready to appear before the committee himself, if necessary, to elaborate on his proposals.

A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister’s Office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

Is there an audience?

There was no mistaking Herzog’s desperate desire to help avert what he regards as Israel’s lurch into potentially violent domestic chaos. But the presidency, as he well knows, is a largely symbolic role.

Like presidents before him, he said, he felt he could not stand idly by at so fateful a moment. But the fact is that Netanyahu, an outspoken defender of Israel’s capable and independent High Court until he was indicted, does not need Herzog to set out the framework for nuanced and necessary reform. The prime minister appointed Levin knowing exactly how non-nuanced, insensitive, and radical a shakeup his justice minister would unleash.

Last week, after Herzog pleaded for at least a pause in the legislative process, Levin declared that he would not slow it “for a minute.” Rothman’s committee has been accelerating its deliberations, with the coalition seeking to blitz the entire package through the Knesset by April. Netanyahu’s ultra-Orthodox and far-right coalition partners are all invested in the “reforms” as currently formulated, and his coalition agreements prioritized the passage of the legislation.

If Israel is on “the brink of a constitutional and social collapse,” therefore, there is only one man who can reverse its march “into the abyss.” And for all his good intentions, it’s not President Isaac Herzog.

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