What do Israeli advocates think of Herzog judicial reform outline? - analysis

The Israel Democracy Institute has reacted positively, while the Kohelet Forum's reactions have been overwhelmingly negative.

 President Isaac Herzog speaks on Israel's judicial reform on February 12, 2023 (photo credit: HAIM ZACH/GPO)
President Isaac Herzog speaks on Israel's judicial reform on February 12, 2023
(photo credit: HAIM ZACH/GPO)

President Isaac Herzog’s People’s Directive judicial reform outline has received mixed reactions. On Thursday morning, Herzog said he accepts any factual criticism, and it serves as negotiation for the beginning discussions.

Herzog consulted with the Israel Democracy Institute (IDI) and the Kohelet Policy Forum to develop the outline. The two organizations are often diametrically opposed on policy, and this extends to the People’s Directive as well. IDI accepted the outline, while Kohelet has been overwhelmingly against it.

IDI president Yohanan Plesner on Thursday said unlike the previous Herzog outline proposed in mid-February, Wednesday’s outline did not operate within the parameters set by Justice Minister Yariv Levin and Constitution, Law and Justice Committee chairman Simcha Rothman. As a package, Herzog’s plan should be considered as an alternative to what the government is proposing, he said.

Kohelet fellow says the proposal is one-sided

Kohelet fellow Russel Avraham Shalev said the outline was one-sided, and for “all the reasons for which the judicial reform is needed, the outline makes every single one of them, or almost every single one of them, worse.”

The Herzog outline, he said, had failed to address the issues that are driving the reform: the ideological homogeneity of the courts, the judiciary’s control over judgeships, ease of judicial review and effective veto of the Attorney-General’s Office on government action. While there were a few concessions, the Right got almost nothing that it wanted.

 The 'Agreement Tent' set up by Israelis encouraging for negotiations on the judicial reform. (credit: EIN PRAT ACADEMY FOR LEADERSHIP) The 'Agreement Tent' set up by Israelis encouraging for negotiations on the judicial reform. (credit: EIN PRAT ACADEMY FOR LEADERSHIP)

“When the president said there was 98% consensus, it fell apart on the appointment of judges,” Plesner said. “Most of the other parts are quite acceptable.”

IDI says protections are pointless without judge appointment protection

IDI’s position is that all the protections afforded in the outlines are meaningless if the appointment of judges is not protected. Plesner said Herzog’s proposal gave more power to elected officials by removing the Supreme Court president’s veto and only giving one to the justice minister.

Shalev said the Judicial Selection Committee was untenable. When the Left is in opposition, he said, the formulation would leave the Right with only four committee members, and when the Left was in power, the Right would only have two. This was due to the contention that the judicial representatives and jurists would side with the Left. Consequently, the ideological homogeneity of the courts would continue, he added.

Regarding judicial review, Plesner said Herzog gave concessions to right-wing concerns about its extensive use with a two-thirds majority vote.

Shalev said even if the justices could not come to an agreement, they could still issue a nonbinding declaration, demanding that the Knesset fix legislation that contradicts Basic Laws. Such soft judicial review was often complied with in other states that had it. He saw this as an expansion of the court's powers, rather than a restriction.

While Herzog did include the restriction of judicial review against Basic Laws, Shalev said this was the most fundamental of requests, since they were the basis of Israel’s constitutional articles.

The Kohelet fellow also took issue with Herzog’s approach on legal advisers. They would still be able to dictate policy through binding legal opinions. While advisers who would disagree with their government counterparts could be transferred, the committee that would approve this would be under the control of the attorney-general, he said.

“So, of course, it’s never going to happen,” Shalev said.

Plesner seemed most excited about the provisions creating a special method for enacting Israel’s quasi-constitutional Basic Law. He said this, along with Basic Law: Legislation, would install missing steps in Israel’s constitutional process. Herzog had seized the opportunity to create a “constitutional moment,” he said.

IDI seemed more reluctant to accept changes to the reasonableness clause, which Plesner said had taken into account criticism from the Right on the perceived excessive use.

“This is not something that IDI thought needs to change, but as a whole, the president’s proposal has compromises,” he said.

Kohelet: Outline too far to the left

Shalev said the “supposed concession” had ambiguous phraseology, as it says the reasonableness clause alone will not be the reason to strike down government decisions. The clause would also continue to apply to many other government bodies, he said.

Regarding the override clause, Plesner said it was not really much of an issue, despite all the noise surrounding it. If the coalition achieved all its other goals, then it would not need an override, he said.

Shalev criticized that the outline “severely limits the potential for any sort of compromise.”

The proposal was so far to the left, it set unrealistic negotiation expectations for the opposition, he said.

While Plesner said Herzog’s attempt at consensus was “heroic,” the coalition rejected it outright, so it will not serve as a potential agreement basis.

“In my judgment, I don’t think there will be another baseline,” he said, adding that the coalition may unilaterally create a compromise based on Herzog’s, but it would water down all the elements to be more palatable.

Plesner also suggested that there might be yet more of a “public price” to be paid before the two sides agree to come to the table.