President Isaac Herzog unveiled his “People’s Framework” proposal to replace the government’s plans to radically overhaul the judicial system in a prime-time address to the nation on Wednesday, in which he urged both sides of the debate “not to destroy the country.” in a power struggle for justice, but seize the opportunity for “a formative constitutional moment”.
Herzog called his plan, which was drawn up in the past few weeks after hundreds of hours of consultation with politicians, lawyers and experts from across the political spectrum, a “golden mean” that offers the best chances for a broad national reform agreement.
He warned, after hearing firsthand the passionate views on the issue from hundreds of Israelis in recent weeks: “Those who think civil war is a line we will not cross have no idea.”
He said he’s heard “real, deep hatred,” albeit from “a very small minority of people … I’ve heard from people — across all parties, that the idea of blood on the streets no longer shocks them.”
Shortly after Herzog published his offer, Prime Minister Benjamin Netanyahu turned it down before leaving for a visit to Berlin.
“The things that the President is proposing have not been agreed by the coalition and key elements of the proposal he has put forward only perpetuate the existing situation and do not bring the necessary balance between the branches,” the Prime Minister said.
Prime Minister Benjamin Netanyahu addresses the media before his departure for Germany on March 15, 2023 (Haim Zach/GPO)
Yesh Atid opposition leader Yair Lapid congratulated Herzog on his framework and promised to examine it with “respect for his position, the seriousness with which it was written and the values on which it is based”.
The opposition National Unity party, led by Benny Gantz, said it accepted “the President’s framework as a piece” and “as a basis for legislation, rather than the existing dangerous bill” that the coalition is pushing.
The President’s proposed framework addresses critical aspects of the relationship between Israel’s branches of government, including greater constitutional weighting of Israel’s fundamental laws; how judges are selected; judicial review of Knesset legislation; and the authority of the government’s legal advisers and the Attorney General. It would also enshrine in the Basic Laws some basic civil rights that are not currently explicitly protected.
selection of the judges
Under Herzog’s proposals, no branch of government would be able to appoint judges without the cooperation of another branch of government. The coalition would not have an automatic majority on the board, as the government’s rapidly advancing legislation envisages, but the judiciary would also lose its veto power over appointments.
The Judiciary Selection Committee would have 11 members, in which the government and coalition would have four representatives (three ministers and one MK); the judiciary would consist of three members (the President of the Supreme Court and two other judges); the opposition would have two members from two different parties; and the Attorney General would appoint two legal scholars to the panel, with the approval of the President of the Supreme Court.
Appointments to the Supreme Court and lower courts would require a majority of seven of the eleven committee members. That means the coalition would not have the absolute control it seeks over judge appointments.
The President of the Supreme Court would, as is the case today, be selected on the basis of seniority, in contrast to government proposals – not yet enshrined in law – that the President of the Court should be chosen by the Judges’ Selection Committee.
Greater constitutional weight for basic laws
Herzog’s framework would introduce a rigid system for passing basic laws, giving them greater constitutional status. Under the plan, basic laws would not be subject to judicial review.
Passing a Basic Law would require four readings in the Knesset. The first three could be approved by 61 MKs, but the fourth would require approval by 80 MKs. Alternatively, the fourth reading could take place in the subsequent Knesset, i.e. after new elections, and would then only need 70 MPs to approve it.
Any change to the electoral law would require the approval of 80 MPs in each of the four readings.
The existing basic laws would be “anchored”, i.e. re-enacted with a large majority, although the structure published on Wednesday evening did not specify how this should be done.
In addition, Herzog’s plan envisages the passage of the Basic Law: legislation, but the draft does not contain any details on this either.
The President’s plan would also enshrine in the Basic Law: Human Dignity and Freedom the right to equality and a ban on discrimination, as well as the rights to freedom of expression, protest and assembly, which are not expressly protected in the Israeli constitution.
A process to draft a constitution will also be initiated and a Bill of Rights will be drawn up “by broad consensus”.
Judicial Review
Judicial review under the president would be subject to some new restrictions, but they would be far less stringent than those in the government’s current proposals.
The High Court of Justice would be able to overturn Knesset laws with a two-thirds majority of an eleven-member judiciary panel. The government’s bill calls for an 80 percent majority of all 15 Supreme Court justices.
Crucially, Herzog’s plan does not include a provision for a Supreme Court repeal, which is a key component of the government’s current legislation, allowing the Knesset to make any legislation preemptively immune to judicial review by a vote of just 61 MPs in three readings or A law can legislate if the court strikes it down.
However, the President’s plan envisages anchoring a judicially non-verifiable regulation for military and military service in a Basic Law. This would essentially allow the Knesset to enshrine in the constitution the right of ultra-Orthodox yeshiva students to be exempted from IDF service, a deeply divisive issue that has divided the country for decades.
The ultra-Orthodox political parties have adamantly insisted that a waiver clause be included in the judicial review to guarantee that the community’s young men do not have to enlist in the IDF. Herzog’s proposal aims to address this issue without allowing the Knesset to override the Supreme Court on other issues and rights.
The Supreme Court would continue to exercise judicial review of rights arising from Israel’s Basic Law of Human Dignity and Freedom, but not expressly stated in that law. In contrast, current government legislation would prohibit the court from doing so, leaving fundamental rights such as freedom of speech and freedom of religion unprotected.
appropriateness
Herzog’s framework would prevent the Supreme Court from using the judicial adequacy test to reverse government and policy decisions and ministerial appointments.
This has been one of the right-wing’s main complaints about the judicial system, most notably in the recent Supreme Court decision excluding Shas leader Aryeh Deri from the ministerial post.
The court could continue to apply the adequacy test to ministerial policy decisions and to measures taken by other state institutions and authorities, such as e.g. B. local councils and state authorities.
Government Legal Advisor
The President’s new judicial and legal framework would preserve the status of government legal advisers as professional civil servants under the aegis of the Justice Department, in contrast to government plans to make them political civil servants.
Supporters of the government’s reform plan resent the intervention of the Attorney General and legal advisers to the ministries, who they say easily and often override the policy initiatives of elected ministers because their written positions are binding on the government.
Alluding to this concern, Herzog’s plan proposes that a ministerial legal adviser could be removed from office if he has material and persistent disagreements with the minister, subject to the approval of a special committee.
However, the stated positions of the Attorney General and the legal advisers of the ministries remained binding. But in a further attempt to allay the concerns of judicial reform advocates, a minister could seek independent counsel in legal proceedings involving his ministry if the Attorney General or the minister’s legal adviser opposes the minister’s position.
This is currently not possible under the current system without the consent of the Attorney General.
“We are in the midst of a deep and worrying crisis,” Herzog said during his speech introducing his new framework. “But I really believe with all my heart that we are also facing a great, historic opportunity today.”
He called his plan “an opportunity for a balanced, intelligent constitutional drafting and an agreement on the relations of the authorities in our Jewish and democratic country, in our beloved country.
“We are at a crossroads: a historical crisis or a crucial constitutional moment.”
Last week, Herzog condemned the government’s current legislation on judicial reform as “oppressive” and harmful to democracy and called for it to be scrapped immediately and replaced with a framework for consensual reform.
The President said in the address that the national crisis was “a disaster” and “a nightmare” because of the coalition’s efforts to weaken the judiciary. He insisted that it was the responsibility of the “leaders of state” in government to put aside the breakneck legal charge lest the country slide into a social and constitutional abyss.