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Herzog presents compromise

On Wednesday evening, in an address to the nation, Israeli President Isaac Herzog unveiled his much-anticipated compromise proposal on judicial reform.

• “In the midst of a deep and worrying crisis,” Herzog presented “an opportunity for a balanced, smart constitutional arrangement and an agreement on the relations between the branches of government.”
• “Most Israelis want a balanced framework,” he said, “that will set out once and for all the balance between the branches of government, most Israelis want a broad agreement, and most Israelis want to live safe and good lives. It’s not a presidential framework; it’s the people’s framework… a victory for all of Israel.”
• Warning of the potential cost of failing to reach a compromise, Herzog said: “Those who think that a real civil war, with human lives, is a border we won’t cross, have no idea… The abyss is within touching distance… A civil war is a red line. At any price, and by any means, I won’t let it happen.”

“The People’s Framework”

Herzog’s compromise proposes:

• Judicial Selection Committee: no branch of government will enjoy a controlling or vetoing majority. Election of judges will require 7 yea votes from the 11-member committee.

The coalition proposals have sought a guaranteed coalition majority.

• Basic Laws: passage of these quasi-constitutional laws will require four Knesset votes, three by simple majority and a fourth with the assent of 80 MKs (or 70 MKs after fresh Knesset elections).
  • The Supreme Court will not be able to strike down Basic Laws.
  • The right to equality, freedom of expression, opinion, protest, and assembly will be codified in Basic Law: Human Dignity and Liberty.

• Judicial Review: the Supreme Court would be able to strike down regular Knesset legislation as being in contravention of a Basic Law, through a two thirds majority of an 11-judge panel.

The coalition proposals call for an 80% majority, and with all 15 judges voting.

• The plan makes no mention of an Override Clause, allowing the Knesset to overrule Supreme Court decisions.

The coalition proposals provide for a Knesset override with a simple 61-vote majority.

• Reasonableness: The court will retain the ability to block some ministerial and other state institution policies on these grounds, but not the appointment of ministers themselves.

• Independence of ministerial legal advisors: the status quo will be maintained, though a special committee may authorise a minister to remove of an advisor in the event that they have “substantial and ongoing disagreements between them that prevent effective cooperation”.

The coalition proposals call for ministerial authority over legal advisors, and for their judgement to be advisory rather than binding.

• Election of Supreme Court President: the position would continue to be assigned on the basis of seniority.

The coalition proposals seek to enable the coalition to appoint the President.

The Response

• Herzog’s proposals received an immediate rejection from the coalition and cautious support from the opposition.
• Prime Minister Netanyahu, who had postponed his departure for a diplomatic visit to Berlin to be able to respond to the proposal, was critical of its content.
• “Regrettably,” he said, “the proposals presented by the president were contrary and had not been agreed to by the coalition, and central sections that he presented only perpetuate the existing situation and do not produce the necessary balance between the branches of government.”
• Coalition sources claimed that Herzog had U-turned and presented a proposal far less in accord with the coalition’s reforms than he had indicated during negotiations.
• The most contentious reform point has long been and remains the Judicial Selection Committee. While Netanyahu and his confidant Ron Dermer – a late addition to the negotiating party – are said to be minded to compromise, Justice Minister Levin and other hard-line figures from among the Likud, the ultra-Orthodox parties, and the far-right Religious Zionism and Jewish Power factions are determined to ensure a controlling coalition vote on the committee.
• The Israeli media quote sources suggesting that Levin threatened to resign and destabilise the coalition further if the plan were accepted.
• With a Kan News poll commissioned following Herzog’s speech finding the coalition dropping 12 seats (to 52) were elections to be held today, Likud MK David Bitan publicly urged Levin to moderate his stance and accept compromise on key issues.
• From the opposition, former prime minister and opposition figure Yair Lapid said: “I congratulate the president on the ‘People’s Framework’…We need to approach the president’s proposal with respect for the office, the seriousness with which it was written and the values that stand at its basis.”

Protests continue

• Large-scale popular protests against the coalition and its reforms continued yesterday.
• Demonstrators gathered at Ben Gurion airport as Netanyahu left for Germany, including a group made up of veterans of the Entebbe Raid.
• Tel Aviv’s Rockah-Namir intersection was blocked by demonstrators, as were the southbound lanes on the coastal highway near the Yanai interchange, Route 4 at the Ben Yehuda interchange, the Hakfar Hayarok interchange, and Maccabit junction. 

What comes next?

• The next weeks will indicate if the pressure of the popular and political opposition to its version of the reforms persuades a critical mass within the coalition to move towards a compromise on the basis of Herzog’s proposal.
• The thorniest element, though, remains the Judges Selection Committee.
• Channel 12 has reported that senior coalition figures are considering an option to propose a counter-compromise on the committee – agreeing to no coalition controlling majority but with the proviso that the coalition chooses the next three justices to be appointed to the Supreme Court.
• The report was met with a swift denial from Levin’s office, and his determination on the Selection Committee issue would seem to rule out his acceptance of such a proposal.
• Levin is insistent on maintaining the pace of the passage of the coalition’s version of the reforms. He plans next to move the bill changing the composition of the committee, with four meetings of the Constitution, Law and Justice Committee scheduled for next week before a vote in second and third readings before the end of the month.