Yariv Levin positive on new 'outside the box' judicial reform outline

The proposal, led by former justice minister Prof. Daniel Friedmann, will be "tested" by Justice Minister Yariv Levin.

 JUSTICE MINISTER Yariv Levin appears before the Knesset Constitution, Law and Justice Committee, last month. (photo credit: YONATAN SINDEL/FLASH90)
JUSTICE MINISTER Yariv Levin appears before the Knesset Constitution, Law and Justice Committee, last month.
(photo credit: YONATAN SINDEL/FLASH90)

Justice Minister Yariv Levin's office expressed positivity toward a new judicial reform negotiation outline published Tuesday led by former justice minister Prof. Daniel Friedmann.

"This is the first outline that goes outside the box, it has good directions and [Levin] will test them," said the Justice Minister's spokesperson.

Levin and Constitution, Law and Justice Committee chairman Simcha Rothman met on Wednesday some of the drafters of the outline, which included Ono Academic college multicultural campuses dean Prof. Yuval Elbashan, Maj-gen (res.) Giora Eiland and businessman Giora Yaron.

Cabinet Secretary Yossi Fuchs said that the outline can be the basis for negotiation but couldn't be accepted "as is."

The proposal would reformulate the system of checks and balances for the judge selection committee, judicial review, the reasonableness clause, the enacting of Basic Laws and the role of government legal advisors.

 Justice Minister Daniel Friedmann attends the last cabinet meeting with Ehud Olmert as prime minister at the PM's office in Jerusalem (credit: ARIEL JEROZOLIMSKI / POOL / FLASH 90) Justice Minister Daniel Friedmann attends the last cabinet meeting with Ehud Olmert as prime minister at the PM's office in Jerusalem (credit: ARIEL JEROZOLIMSKI / POOL / FLASH 90)

What does the former justice minister propose?

The judge selection committee, under the proposal, would have 4 members each from the coalition, opposition and judiciary. Included would be the Justice Minister, Constitution, Law and Justice Committee chairman, and the High Court of Justice president. The opposition would select its own members, but there would be no more than two representatives from the same party. Judicial representatives would take part in discussions but would largely have observer status.

Two justice candidates would be chosen each selection, one each from the opposition and coalition. The justice minister and High Court president would each have one veto each term. For lower court promotions, a judge would need the support of two coalition, two opposition, and three judge members of panel.

This proposal is far cry from the current committee, which has two Israel Bar Association representatives, three justices including the president, two Knesset Members and a cabinet minister choosing candidates by majority vote. The reform bill currently awaiting preparation for Knesset readings would have the Bar representatives removed in favor of the Law committee chairman and another minister, and would codify having one opposition Knesset member. Reformists argue that the current system gives too much power to judges, and anti-reformists that the new composition would give the coalition an automatic majority and control of the judiciary.

Israel's quasi-constitutional Basic Laws and amendments would require simple majority four reading votes under the Friedmann proposal, but laws changing the election system or those that received less than 70 votes would have its fourth reading the next Knesset. Basic Law amendments and bills on human rights would require three readings with a 70 MK majority.

Like with the current reform bill, the Friedmann proposal would restrict the court from engaging in judicial review of Basic Laws. However, it deviates from the reform that would limit review of regular legislation to 80% High Court consensus. Instead, it is proposed that three-quarters of a bench in agreement be enough to strike a law.

Proposal seeks to limit override clause

The proposal also offers a more limited override clause. The reform clause would allow the Knesset to overrule judicial review with a simple 61 majority and not allow the legislation to be revisited by the court until a year after the Knesset that implemented the law had been dissolved. The Friedmann proposal would allow an override with 61 that would come into effect in the next Knesset, or over 65 to come into immediate effect. The law wouldn't be able to be revisited by the court until five years from the law's implementation.

The proposal also touched on the reasonableness clause, and the impairment and Deri Law 2 bills being prepared in the Special Committee for Amendments to Basic Law: Government.

The impairment bill gives the Knesset rather than Attorney-General the power to declare the prime minister unfit for office, and specifies that it is only for medical reasons. This law was introduced following reports, denied by the A-G, that her office was considering declaring Netanyahu unfit for service over his conflict of interest between the reform and his ongoing corruption trials.

The Deri 2 Law would prevent the High Court from intervening in administrative appointments. The bill is named for Shas Chairman Arye Deri, who under the reasonableness clause was ruled by the court to be removed from ministerial posts due to his criminal past -- this after a previous Basic Law: Government amendment allowed him to take the posts despite his suspended prison sentences.

The reasonableness clause allows for the court to intervene in administrative affairs that are deemed beyond the scope of reasonable and responsible actions. While there is no current legislation addressing the clause directly, when Levin announced the reform at the beginning of the year he said that there would be no reasonableness clause.

The Friedmann proposal would allow the use of the reasonableness clause expect in the case of appointments, and the prime minister would be determined unfit for service only by the Knesset.

Another issue that has yet to be address in reform legislation is the role of government legal advisors. Levin said in his announcement that they would be required to operate according to the government's position. The Friedmann proposal would have legal adviser's to maintain independence but to have their opinions non-binding and allow the government to seek representation from other attorneys.

Elbashan emphasized in a Wednesday morning Facebook post that "this is a blueprint in the making. Not in a finished product. What was published is a draft even before proofreading and editing." Whether this outline or an other, he hoped that the coalition and opposition would begin talking. The professor also dismissed "conspiracy theorists" who said that Rothman was behind the draft, and Yaron used all his influence just for the meeting.

Labor leader Merav Michaeli asserted that Rothman had enlisted Friedmann to write the outline on his behalf to present it as a "compromise outline." She reiterated that the only acceptable proposal was a complete cancelation of the reform. Protester organizers for the "day of resistance against dictatorship" asserted that Levin had developed the proposal.

National Unity MK Orit Farkash HaCohen said that the outline was more extreme and worse than the plan promoted by the coalition. Former Defense Minister Moshe Yaalon echoed this sentiment, describing it as the "new formula of the coup d’état."

The Israel Democracy Institute said that it strongly opposed the outline because it adopts most of the coalition points and doesn't create protection against absolute coalition control. The Law Lecturers Forum for Democracy said that it was no wonder that the coalition has hastened to support the new outline, as it was so similar to the current reform plan. New Hope leader Gideon Saar said that it appealed to Rothman and Levin because it politicized the judge selection committee, created a high bar for judicial review, and made legal adviser's opinions non-binding.

"It's hard to understand why some choose to call it a 'compromise,'" Sa'ar wrote on Twitter.