Herzog floats 5 principles as basis for judicial reform, pleads with coalition to delay its legislation

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)

Referring to the ongoing protests against the proposed changes, Herzog calls the demonstrators “patriots who are utilizing the right to protest… and are completely committed to the fate of the nation and the country.”

“I feel, we all feel, that we are a moment before a confrontation, even a violent confrontation,” he says. “The powder keg is about to explode, and brother is about to raise his hand against brother.”

The external threats are bad enough, he says. Internal violence “of any type — and particular against public servants and representatives — is a red line that we must not cross.”

Turning to the government’s overhaul proposals, Herzog says the balance between the three branches of government is critical, that the Knesset is sovereign, and that reform and “changes can be completely legitimate.”

In a nod to critics of the judiciary, the president laments a “lack of diversity” in the courts, which he says “really disturbs” him, and says the planned shakeup “is the result of a [political] camp that feels that an imbalance has developed between the branches.”

“This pain felt by our brothers and sisters is real, and it’s a big mistake to reject or ignore it,” he says.

“On the other hand, I want to stress: the responsibility to listen, to feel pain… lies first and foremost with those who hold [power in] the institutions of government at this time,” he adds.

Herzog says the government’s package of changes in its current format “raises a deep concern of their potential for harm to the State of Israel’s democratic institutions.”

He goes on to hail the Supreme Court as “the pride of our country,” noting that “Israel’s courts and judges protect Israeli society and the state, truly, against crime, external [legal] attacks on IDF soldiers, against the loss of the principles of justice, law and morality, and the trampling of individual rights.” Says Herzog, “We are a state of the rule of law thanks to the professional, responsible, independent and autonomous judiciary.”

He notes that “millions of citizens here, alongside the Jews of the Diaspora and great supporters of Israel across the world — see the reform as a real threat to Israeli democracy.”

Herzog says he has met in recent weeks with figures on both sides of the debate and says he is convinced that it is possible to reach a compromise, before laying out a five-point plan to serve as the basis for negotiations.

The first is the imperative to legislate a “Basic Law: Legislation,” to set out the framework for all legislation, ordinary and Basic Laws, and thus to enable constitutional stability. “No more Basic Laws that sprout like mushrooms after the rain,” he urged.

This and all Basic Laws would be passed only with “wide agreement” and via four Knesset readings, rather than the usual three. There would be “no judicial oversight over a Basic Law legislated in that way.”

The Basic Law: Legislation would “protect the High Court’s right to judicial oversight” over non-basic laws, “via a bench and majority to be agreed upon.” It would also set out the terms by which the Knesset can override decisions by the court to strike down laws, “by means of a majority and a process that will be determined by dialogue and agreement.”

His second principle is to ease “the judicial burden” on judges, which he says Israelis are paying a price for.

The third is to bring greater efficiency to the judicial system and thus help increase public confidence in the courts, with Herzog saying he will ask Justice Minister Yariv Levin and Supreme Court Chief Justice Esther Hayut to reach an agreement “that will put an end to the endless delays of justice and insufferable foot-dragging.”

Fourth, he calls for the judicial appointments committee to be reconfigured so no side has an automatic majority, saying all branches of government will have equal representation on the panel, alongside public figures who will be appointed “with coordination and agreement” between the justice minister and Supreme Court president. The choice of judges “must be based on cooperation and agreement — not on capitulations and vetoes,” he said.

Finally, he warns that the judicial doctrine of “reasonableness” can be abused by the courts if not limited, while stressing that there is a place to apply it, as is currently the case, “in cases of extreme unreasonableness.” Citing his familiarity with the positions of the sides, he says he believes they can reach agreement on that as well.

He calls his five points the “basis for an agreement” and appeals to Hayut, Levin and Knesset Constitution, Law and Justice Committee head Simcha Rothman, “with a request from the bottom of my heart,” to “start talking … and lower the flames,” claiming that “agreement can reached in a short time on the basis of the principles” he has set out.

He says the president’s residence is open to all, at all times, to advance the process.

He urges Rothman and the coalition: “Don’t bring the [current planned] legislation to a first reading,” as is planned for tomorrow, amid the current divisive background. “Weigh the principles I set out today as a basis for discussion before the first reading,” he implores.

Herzog says he will appear before the committee in person if needed to elaborate on his proposals.

He concludes by stressing he is issuing his proposals and his plea for dialogue for the sake of all Israelis, “for the sake of the Declaration of Independence which is the foundation of our existence,” and “for the sake of Israel as a Jewish and democratic state.”

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