Israel’s President Isaac Herzog spoke to the nation on Wednesday evening presenting his compromise proposal on judicial reform. In reports leading up to Herzog’s announcement some coalition members have said the president’s proposal was one-sided and negotiations blew up. After looking it over, they clearly weren’t wrong.
Herzog began by discussing what he said was the very real threat of civil war and the other challenges facing Israeli society. Despite the differences, Herzog said most Israeli want judicial reform and agree on most of the elements. He described his compromise as one where everyone wins.
Incredibly, in its most important component to the coalition, the president’s proposal does not give the coalition of elected officials a majority on the selection committee. Up to now this has been a red line for the coalition as they want to end the Supreme Court justices’ automatic monopoly in picking their ideological successors.
In Herzog’s proposal, on the Supreme Court selection committee of 11 seats, only 4 seats will be given to the coalition: 3 ministers and 1 coalition MK.
The opposition will get 2 MKs.
The justices will get 3 seats, made up of the Supreme Court president and 2 other supreme court justices, chosen among themselves.
Two additional seats will be given to public legal figures chosen by the Justice Minister only with approval of the Supreme Court president.
Justices need to be voted in by 7 of the 11 members, which must include at least 1 of the committee’s supreme court judges. In short, automatic veto.
When the Left is in the opposition, this automatically giving the opposition and Left a 5-4 majority on the committee, but when the Left makes up the coalition, they will have a 7-2 majority.
Until now, the major sticking point in the quiet discussions is that the coalition wants to model itself after most other democratic countries, where elected officials select the supreme court judges, while the left wants to maintain the situation where the supreme court justices have final or significant say in who becomes a chief justice, perpetuating their leftwing ideology into future courts.
The president’s proposal was supposed to be based, in part, on discussions with members of the coalition and various figures on the left, though reportedly no one from Yair Lapid (Yesh Atid) or Meirav Michaeli’s (Labor) parties participated as they refused to cooperate or negotiate at all.
Before the announcement after hearing what the president was proposing, Justice Minister Levin made it clear he will continue to promote his reform bills in the Knesset.
It’s quite possible the president may have done more damage by presenting this one-sided proposal.
Other obvious serious problems in the president’s proposal that the coalition’s judicial reform bills are trying to fix:
- The Attorney General and legal advisors will have final say over the elected ministers and MKs, and are not advisory positions as the coalition wants.
- Legal advisors can only be removed by decision of a special committee, of which the AG must be a committee member.
- Judges can disqualify Knesset legislation with a 2/3 majority from a panel of only 11 Supreme Court justices. It will be easy for the court president to ensure the correct 7 judges are on that panel from the 15 to choose from.
- This 25th Knesset won’t be allowed to make any other laws regarding the judges (such as dealing with the issue of standing).
Makor Rishon legal reporter tweeted that the president had an agreement in his hands that was reached between representatives of the left and right, and he knows, because he was part of the group, but instead the president chose to present a version with the positions recommended by the leftwing Israel Democracy Institute.
לנשיא היה מתווה מאוזן ומוסכם בהישג יד – מתווה הפרופסורים הדיקנים למשפטים (שהייתי חבר בו) – שהקואליציה הסכימה כמעט לכולו
במקום לאמץ אותו ולחלץ את ישראל מהמשבר, הנשיא בחר להקשיב למכון הישראלי לדמוקרטיה, לשבור 60 מעלות שמאלה, ולהציע מתווה רגרסיבי שאף ממשלת ימין שפויה לא יכולה לקבל
— יהודה יפרח (@yehuday30) March 15, 2023
Finance Minister Bezalel Smotrich says he hopes it was a technical error that led the president to post Chief Justice Hayut’s proposal on the website, rather than the actual proposal that Herzog had been promoting to them over the past few days.
Prime Minister Netanyahu told the press, before flying to Germany,
“Regarding the president’s outline, I think that any attempt to reach agreement and dialogue is certainly appropriate, and therefore the representatives of the coalition went and talked with the president time and time again, while the representatives of the opposition were not ready for even one litigation.
Unfortunately, the things presented by the president were not agreed upon by the coalition representatives. Key sections of the outline he presented only perpetuate the existing situation and do not bring the required balance to the Israeli authorities. This is the unfortunate truth.”
The Kohelet Policy Forum released a statement:
“The Kohelet Forum welcomes any attempt to reach a broad agreement and has even worked tirelessly in recent weeks to promote such an agreement.
But the outline presented by the Honorable President of the State exacerbates the main problems that the legal reform was intended to solve, does not refer to others and abandons broad agreements that have already been reached.
We will continue to work to forge a proper compromise in the Knesset and with partners in civil society.”