BICOM

As revealed by several Israeli media outlets, the compromise proposals emanating from the process initiated by President Herzog include the following:

• By means of a three quarters majority, and with all judges present to hear the case, the Supreme Court will have the ability to strike down regular laws as contravening Basic Laws (laws having quasi-constitutional status), but not Basic Laws themselves.
• Enactment of new Basic Laws will require four Knesset votes, with a majority voting in favour each time. The first three votes will require only a simple majority of 61, while the fourth vote will require a majority of 80 (or 70 MKs in the next Knesset to be elected).
• The Knesset will be able to re-legislate laws struck down by the court with a majority of 65 voting in favour. (A simple majority of 61 will be able to re-legislate a struck down law, but it would only come into effect six months after the election of the next Knesset.)
• 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 with the election of a Supreme Court judge requiring a majority of 8 of 11 members voting in favour (i.e. two non-coalition committee members agreeing).
  • One providing balance between the coalition and the opposition on the committee (4 members each) and with 4 judges present at debates but not able to vote. The coalition and opposition would take it in turn to propose a candidate for appointment to the Supreme Court. The President of the Supreme Court would have one veto of a coalition appointment and one of an opposition one; the Justice Minister would have one veto of an opposition appointment.

• On an override clause allowing the Knesset to override decisions of the court, the leaked proposals are not clear on a recommendation. The government’s plan for a simple majority of 61 is not included, but options to exclude the override altogether, or else institute one requiring a higher majority are floated.
• On the question of the Supreme Court employing “reasonableness” as grounds to revoke administrative government decisions such as the appointment of ministers, the plans state that “the court will not review cabinet discretion on the basis of grounds of reasonability in decisions on policy or political appointments.” The court will only intervene “if the decision is patently absurd or extremely deviates from the sphere of discretion that every reasonable minister or bureaucrat would use.”
• On the government’s plans to end the autonomy, authority, and independence of government legal advisors, the status quo would prevail. The government would have the ability “in exceptional cases to adopt a position that contradicts” the advisor’s opinion.
• The plans also codify basic rights that have not been enshrined in law to date, including the principle of equality (“every citizen is equal before the law; no person’s individual rights are to be violated on the basis of religion, race, gender, sexual preference, physical, emotional or mental disability”), as well as freedom of speech, freedom of religion and freedom from religion.
• Proposals also seek to address issues not covered by the government’s reforms, including a “legislative solution… to the issue of drafting yeshiva students” and a multi-year plan to reduce the workload on the courts which sees cases drag on or be delayed.