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Compromise proposals on judicial reform

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What happened: Details have emerged of proposed compromises to the government’s judicial reform agenda, initiated by President Isaac Herzog.

  • As revealed by several Israeli media outlets, the compromise proposes the following (for a fuller breakdown click here):
    • Protection of the Supreme Court’s ability to strike down regular laws as contravening Basic Laws (laws having quasi-constitutional status), but not Basic Laws themselves.
    • A more robust process for the enactment of new Basic Laws, requiring four Knesset votes, with a majority voting in favour each time.
    • The Knesset will be able to re-legislate laws struck down by the court with a majority of 65 voting in favour.
    • Two options are proposed for the vital question of the judges selection committee: one providing the governing coalition with a majority on the committee but increasing the level of majority required for an appointment, thus requiring non-coalition committee members to assent; one providing equality of representation from the coalition and the opposition, and with limited veto powers for the Justice Minister and Supreme Court President.
    • No override clause, or one with a threshold higher than a simple majority of 61.
    • Limiting the Supreme Court’s ability to employ “reasonableness” as grounds to revoke administrative government decisions such as the appointment of ministers.
    • Retention of the current autonomy, authority, and independence of government legal advisors, with a limited government ability to overrule.
  • The plans also codify basic rights that have not been enshrined in law to date and include proposals which also seek to address issues not covered by the government’s reforms, including the drafting of Yeshiva students and a multi-year plan to reduce the workload on the courts which sees cases drag on or be delayed.

Context: Herzog has been attempting mediation and compromise for several weeks, in an effort to heal the deep divisions in Israeli society created by the government’s far-reaching reform plans.

  • On release of the details of the plan, Herzog’s office immediately stressed that their release was “not with the consent of the president. It must be stressed, this is not the president’s plan. This is one proposal out of many that were raised by researchers and academics from different institutions. The president has yet to formulate a final plan, and after this is done, the president will present it to Israel’s citizens.”
  • In a Monday meeting with 100 local council leaders, however, he said “we’re closer than ever to an agreed compromise. Behind the scenes there are agreements on most issues. Now it’s up to our national leaders, in the coalition and opposition, who need to meet the moment.”
  • The architects of the proposed compromises are said to be Prof. Daniel Friedmann, a former justice minister with a record of attempted reforms of the justice system, Prof. Yuval Elbashan, Maj. Gen. (res.) Giora Eiland, and hi-tech entrepreneur and protestor Giora Yaron.
  • Responses from the coalition have largely been critical. Religious Zionism MK and chair of the Knesset’s Constitution, Law, and Justice Committee Simcha Rothman – the leader, along with Justice Minister Yariv Levin, of the reform agenda – said: “As is clear to any reader, this ‘plan’ voids the reform of its fundamental content… We will continue to advance the legislation as planned and continue attempts to reach broad consensus, just as we have in the last few months.”
  • Indeed, Rothman has moved to accelerate the pace of the reforms, summoning members of the committee to four meetings, on Sunday, Monday, Tuesday and Wednesday.
  • Levin is said to be particularly unwilling to compromise on the question of the government majority on the judges selection committee, while also continuing to favour the implementation of the override.
  • Reports have suggested, however, that Likud cabinet ministers have been imploring Prime Minister Netanyahu to bring pressure to bear on Levin and Rothman to accept compromise. They argue that the Likud is paying too high a price for inflexibility.
  • Likud MK Moshe Saada told Army Radio that he hoped a compromise would be reached within a month. “Finally, there is a serious position paper that we can discuss,” he said. “If they would stop the circus for a single moment and hold a serious dialogue, we could resolve this. My assessment is that a compromise is possible.”
  • Opposition sources are said to have welcomed the compromise proposals, though with the proviso that negotiation without a pause to the legislative process is a “fraud”, in the words of Yesh Atid head Yair Lapid.
  • Organisers for tomorrow’s protests against reforms rejected the proposals as making too many concessions to the government’s plans.

Looking ahead: Herzog has said that the final version of his compromise proposal will be forthcoming.

  • In the meantime, the sections of the reforms as they currently stand that address the changes to the selection committee and barring the Supreme Court from striking down Basic Laws will be advanced in a series of “marathon meetings” of the Constitution, Law and Justice Committee to prepare them for second and third readings.
  • Simultaneously, the sections that address judicial review over legislation and the override clause will reach their first reading in the Knesset plenum.
  • Further protests against the reforms are planned for Thursday.
  • For in-depth analysis of the proposed reforms and their implications, see recent Fathom articles by Professors Amichai Cohen and Suzie Navot, and Russell Shalev.