A draft of a compromise deal produced under President Isaac Herzog’s aegis on the government’s judicial overhaul was published Tuesday morning, whereupon the president’s office swiftly clarified that he had not endorsed it, denied it was a finalized version, and called it one of several possible proposals, while politicians on both sides of the aisle attacked it.
Herzog has been working behind the scenes to formulate and broker a compromise deal over divisive judicial overhaul plans being pushed by Prime Minister Benjamin Netanyahu’s government, saying the legislation currently being advanced “endangers Israel’s democratic foundations,” and claimed on Monday that the sides were “closer than ever” to an agreement.
The president has assembled a diverse team of legal experts to work on the compromise offer, headed by Professor Yedidia Stern, a former dean of the law faculty of Bar-Ilan University, the Israel Hayom daily reported in its article on the proposal.
It said the biggest ongoing bone of contention surrounds the coalition’s intention to take a controlling majority on the panel tasked with appointing High Court judges — a central element of the overhaul process as presented in January by Justice Minister Yariv Levin and advanced through a first reading in the Knesset last month.
A second report on the proposal, on the Ynet news site, said there would be changes to the panel for selecting justices, but without granting the coalition an “automatic majority.”
The leaked draft proposes an overhaul either without an override clause — which would have allowed the Knesset to re-legislate laws struck down by the High Court, or pass laws immune from any judicial review — or with a very narrowly applied version.
It also includes a limitation on the use of the “reasonableness” measure by which judges can evaluate and invalidate government or public sector decisions. Levin is seeking to bar the judicial “reasonableness” test altogether, arguing that it is too amorphous.
The compromise offer, as reported by Israel Hayom, would bar the court from blocking Basic Laws, which have quasi-constitutional standing and, the government argues, should be protected from court interference. The Ynet report elaborated that the document proposes increasing the Knesset threshold for enacting or amending Basic Laws. Currently, most Basic Laws can be changed with a simple majority of MKs present, and can be easily manipulated to solve short-term political issues, such as Basic Law legislation passed in 2020 to underpin a failed rotation agreement between Netanyahu and National Unity head Benny Gantz.
The court would still be permitted to invalidate regular laws, but it would need a full bench of judges present, of whom two-thirds would have to agree, Ynet reported. Without this majority, the court would only be permitted to make a non-legally binding declaration that the law is “incompatible” with Basic Laws.
Regarding the appointment of ministry legal advisers, whose legal advice is currently binding on ministries and who are professionally subordinate to the attorney general, the leaked draft largely leaves the status quo intact, save for “exceptional circumstances” where a minister may ignore their legal adviser and even solicit external legal representation if the issue lands in court.
After the publication of the leaked document, the President’s Office released a statement “clarifying” that the proposal was simply one of a number under consideration.
“The publication this morning was not to the knowledge of Herzog or anyone acting on his behalf. It should be clarified and emphasized that this is not the president’s outline,” his office said.
“This is one proposal out of many that were presented in recent weeks by researchers and academics from different institutions. Herzog has not yet finalized a final proposal, and after he does, the proposal will be presented to the citizens of Israel,” the statement concluded.
Levin and Constitution, Law and Justice Committee chair MK Simcha Rothman released a joint statement welcoming the president’s clarification, but nonetheless warning that the leaked outline represented a “neutering” of the fundamental principles of the planned judicial makeover.
The pair thanked the president for his efforts, and added that “there is broad consensus, among the public, academia, high tech, economists and among Knesset members about the need for broad and comprehensive reforms and its fundamental principles.”
Former prime minister Naftali Bennett endorsed the leaked plan in a tweet, calling it “balanced and good,” and saying that both sides must “show leadership, understand that they must compromise and adopt the outline, in order to avoid a civil war.”
But leaders of the anti-government protest movement, who have organized a series of mass demonstrations against the judicial overhaul since it was unveiled by Levin in early January, slammed the proposal, saying it paved the way for dictatorship.
“The president gave Levin, [Bezalel] Smotrich, Rothman and Netanyahu the keys to dictatorship,” they said in a statement, adding that everything the coalition wanted was provided for in the leaked compromise document.
“This was spitting in the face of the millions of people who have been battling for two months for the sake of Israeli democracy. In contradiction to his public promises, the president conducted a shady unilateral procedure and produced another proposal for dictatorship. We won’t accept it. We won’t live under a dictatorship.”
On the other side of the political aisle, Likud MK Boaz Bismuth also slammed the proposal, labeling it a “surrender to the opposition.”
“I’m in favor of negotiations, I’m not in favor of surrender. Today it’s the reforms, tomorrow it will be Jerusalem,” he tweeted.
Asked about the draft proposal on Ynet radio on Tuesday, Labor head Merav Michaeli dismissed it as “not relevant.”
“I’m not ready to give legitimacy to a regime coup that will eliminate Israeli democracy, and that’s what this government is doing,” she said, declining to address the leaked document’s specifics.
Protest organizers are gearing up for another major campaign to disrupt daily life on Thursday, including blocking roads around Ben Gurion Airport in an attempt to prevent Netanyahu from catching his flight for an official visit to Italy.