Judicial overhaul negotiation teams hold talks on anchoring fundamental rights in law
Coalition and opposition teams say they hope to reach agreement on a comprehensive reform package, instead of the government’s previous piecemeal approach to constitutional revamp
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Negotiation teams for the coalition and opposition parties over the government’s controversial judicial overhaul program discussed the possibility of anchoring in law fundamental civil rights on Monday, amid efforts to hammer out a compromise on the shake-up bid.
Such a measure is a key demand of the Yesh Atid party and other opposition factions for any comprehensive solution to the political and constitutional storm that has erupted over the coalition’s plans to radically constrain Israel’s judicial system.
Amid the ongoing discussions, the two sides are also trying to formulate a comprehensive reform package covering all major constitutional issues raised by the legislation that the government advanced, but did not enact, in the Knesset’s winter session.
This too is a key demand of opposition parties Yesh Atid and National Unity, and if adopted by the coalition would constitute a sea-change in its approach.
Until now, the government has advanced its radical program piecemeal in a set of separate bills and as just the first in several stages of its overarching judicial and legal overhaul.
The government’s sweeping “reform” agenda includes legislation that would give governing coalitions almost complete control over judicial appointments to all courts in the country, while radically reducing the ability of the High Court of Justice to strike down unconstitutional laws and allowing the Knesset to make legislation immune to High Court review in the first place.
The judicial appointments legislation was set to be passed into law at the end of March, but mass protests, widespread strikes, opposition from numerous sectors of Israeli society, pleas from President Isaac Herzog, and the intense opposition of some critical IDF reserve units forced the government to back down and enter a negotiation process.
A senior government source told The Times of Israel on Monday that a framework for anchoring fundamental civil rights was indeed discussed on Monday and previously by the negotiating teams as part of the overhaul reform package.
“Rights that are not explicitly detailed in the Basic Law: Human Dignity and Liberty – discussions are being held on this too, discussions. What will be exactly, what will be included, no one knows, these are complicated issues,” he said.
Prime Minister Benjamin Netanyahu alluded to these negotiations during a press conference on Monday evening, when in response to a question regarding the judicial overhaul, stated: “We will anchor in the Basic laws fundamental rights and we will not injure [the rights] of women, LGBT communities, or the ultra-Orthodox.”
One of the key arguments of opponents to the government’s judicial overhaul package is that it would give the government and Knesset almost unrestrained power and remove the checks on such power provided by the High Court of Justice.
Anchoring fundamental rights in law would constitute a major step toward alleviating these fears.
The government official also acknowledged that the goal of the negotiations was to reach an agreement on a broad reform package.
“The intention is to discuss all the issues and to try and come to agreement on all those issues. Whether or not we succeed there is no way of knowing,” he said.
He said the issues under discussion were broadly those covered by Herzog’s proposed “People’s Plan,” but insisted that the coalition “totally rejects” the positions proposed in that plan.
During the course of Monday, coalition representatives and the negotiation teams of Yesh Atid and National Unity held extensive meetings at the president’s residence, alongside constitutional experts from both sides.
The discussions focused on what were the most important principles regarding the key issue of judicial appointments, as well as what broader issues need to be part of the negotiations.
A National Unity source said the party is insisting on addressing the core issue of the composition of reforming the Judicial Selection Committee which they said was the most difficult obstacle to an agreement among the entire scope of the constitutional issues raised by the government’s legislation.
The source did not say what National Unity is proposing on the issue, but noted that one of its five principles for legal reform was that the process of selecting judges should be completely apolitical, without any kind of bargaining process between political parties over judicial appointments.
This stance rules out the final version of the government’s bill which was pulled from a final vote at the last moment in the Knesset two weeks ago. The bill would give the coalition an automatic majority on the Judicial Selection Committee.
Such a situation would grant a governing coalition almost total control over almost all lower court appointments and full control over the first two Supreme Court appointments in a government term, with further appointments to the top court needing the support of an opposition MK and then a member of the judiciary.
If agreement can be reached on the Judicial Selection Committee, dealing with the other major issues would be easier, the source said.
Another source closely familiar with the negotiations said the discussions on Monday were held in a generally good atmosphere and that the different negotiating teams “came into the room in good faith.” The source noted that wide gaps still exist between the two sides.
The source added that the sides are trying to see “if they can reach an agreed-upon reform that would be wider in scope than proposed by the government,” and would include a Basic Law: Legislation, a bill that would go a long way in defining the relationship between the Knesset and the Supreme Court.
“The aim is to do a comprehensive deal and, so far, the coalition appears inclined to be receptive to this demand,” said the source.
They also confirmed that the coalition and opposition teams are discussing how fundamental rights could be anchored in law, and said that the coalition “might be willing to consider this as part of a wider package.”
Three “marathon discussion sessions” will be held next week to try and reach an agreement on some of the key details of the major issues.
Representing the coalition was Cabinet Secretary Yossi Fuchs, together with legal scholar Prof. Talia Einhorn and constitutional expert Dr. Aviad Bakshi, head of the legal department of the conservative Kohelet Policy Forum think tank which helped formulate the government’s original judicial overhaul legislation.
Yesh Atid’s representatives included MK Karin Elharar, Naama Shultz who served as the director-general of the Prime Minister’s Office under the tenure of Yesh Atid leader Yair Lapid, and Attorney Oded Gazit.
National Unity’s negotiation team includes MK and former justice minister Gideon Sa’ar, as well as MKs Hili Tropper and Orit Farkash-Hacohen, along with Attorney Ronen Aviani.
Constitutional scholars Prof. Amichai Cohen of the Israel Democracy Institute and Prof. Yaniv Roznai of Reichman University also participated in the discussions on Monday, following a request by National Unity for them to join the meetings.
