Kohelet, right-wing think tank that inspired overhaul, calls for partial compromise
Kohelet Forum, which provided ideological foundations for coalition’s radical legislation, says override law could be scrapped, still wants coalition ‘advantage’ in choosing judges
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Kohelet Policy Forum, the institution that formulated the ideological foundations for the government’s radical judicial overhaul program, called for compromise Tuesday over the far-reaching proposals, as the government continued its legislative drive despite trenchant and widespread public opposition.
In a statement published on its social media channels, the conservative organization said it continued to believe that deep reform to the legal and judicial system was necessary, but that achieving broad consensus over “the necessary changes” was an important component for longer-term constitutional change.
The organization suggested that the extremely controversial High Court override law could be removed entirely from the legislative package, and that compromise over concerns regarding the abusive use of Basic Laws could be overcome, although it appeared less open to serious compromise over the composition of the Judicial Selection Committee.
Legislation being advanced by the coalition would give it complete control over selecting judges, as a central pillar of a legislative package that would bring Israel’s judiciary largely under political control, almost completely preventing the High Court of Justice from acting as a brake on the executive and legislature, and giving near-unlimited power to the governing majority.
The coalition claims the package will strengthen Israeli democracy, curb an overly interventionist High Court, and better reflect the will of the electorate. Critics and growing mass protest movements decry the package as destroying the separation of powers, rendering basic rights unprotected, and upending Israel’s foundational democratic principles of equality and personal freedoms.
Kohelet researchers played key roles in developing many of the new government’s policies regarding the judiciary, with Justice Minister Yariv Levin citing Dr. Aviad Bakshi, the head of the institution’s legal department, as one of the scholars he consulted in drawing up the far-reaching proposals.
The organization became a target for the anti-overhaul movement, with the Brothers in Arms protest group barricading Kohelet’s Jerusalem offices with sandbags and barbed wire last week.
“We believe that comprehensive reform is necessary in light of the unrestrained power that the judicial branch has accumulated against the representative branches of government,” the Kohelet Policy Forum’s Tuesday statement said.
“In the current relationship between the branches of government, an imbalance has been created that has caused a situation whereby government does not function as it should, and large parts of the nation feel their participation in the democratic process is not worthwhile,” it said.
The organization added, however, that “there is great importance in achieving broad consensus for the necessary changes,” and that it had in the last two months been engaged in dialogue with those opposed to the proposed reforms “in an effort to reach agreements and compromises.”
In that context, the Kohelet Forum said it greatly appreciated the efforts of President Isaac Herzog to bring both sides of the political map to a consensual reform plan.
Herzog himself has said that he has met with numerous experts and stakeholders in the legal and judicial shakeup from both sides of the ideological divide and has managed to bring about consensus on most issues between the two groups.
Addressing specific points of the government’s legal and judicial overhaul, Kohelet said that “agreement could be reached over conceding on the ‘[High Court] override clause,’ while finding a solution for specific issues through using the principle of non-justiciability.”
The organization was likely referring to the long-running controversy of blanket IDF service exemptions for ultra-Orthodox yeshiva students, which the High Court has struck down on three occasions as discriminatory.
The ultra-Orthodox political parties are believed to be the major driving force behind the demand for an override clause precisely to stop the High Court from invalidating new legislation granting such blanket exemptions.
Founding chairman of the Kohelet Policy Forum Prof. Moshe Koppel recently described the override clause as “a stupid idea,” saying there was “an understandable concern that it will be exploited.”
Kohelet said a remaining source of dispute was the key issue of the composition of the Judicial Selection Committee — the panel that selects all of Israel’s judges — which the current legislation would put entirely in the control of the government.
The organization said it backed a formula whereby the judicial branch’s veto over Supreme Court appointments would be abolished, as proposed by the government’s legislation, and the coalition given “an advantage” on the committee.
It did not specify whether that advantage would amount to the total control the government would have over the committee if the current legislation is passed.
Kohelet also said it understood that the lack of judicial review over Basic Laws and the ease by which they could be passed and amended created concerns about their abuse by a governing coalition.
Therefore, it said, passing Basic Laws could be made more difficult, such as by demanding a fourth reading in a new Knesset for the approval of such a law, and with a majority of 61 MKs at every reading.
“We call on the president to adopt these principles, which constitute an appropriate compromise that would realize the principle goals of the reform, improve the system of governance in Israel, remedy the concerns of those opposed to the reform, and restore the trust between the branches of government and between the different segments of the Israeli public,” the statement said.
“Our hope is that these changes will allow progress toward the adoption of a consensual constitution for the State of Israel, which will include a bill of rights,” it added.
Herzog is expected to publish his compromise proposal in the coming days, though he has already called for the current legislation to be abandoned and for the legislative process to be suspended in order to enable a dialogue and compromise process.
Despite these calls, the coalition has continued its legislative drive, with the Knesset early Tuesday approving in its first reading a bill to radically curtail the High Court’s power of judicial review over Knesset laws and allow the Knesset to make regular legislation immune to High Court review altogether. Legislation to give the coalition full control over the selection of judges, and blocking the court from reviewing Basic Laws, passed its first reading last month.
Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman has scheduled back-to-back hearings on the legislation all week, including possibly and unusually this coming Thursday, in preparation for final readings in the Knesset plenum before the end of the Knesset’s winter session on April 2.