Gideon Sa’ar’s middle path for changing the legal establishment -analysis

Sa’ar strongly opposes all of Netanyahu’s personal legal changes and in a far more unqualified way than Yamina which vacillates on such issues.

Gideon Saar (photo credit: Courtesy)
Gideon Saar
(photo credit: Courtesy)
New Hope party leader Gideon Sa’ar tried on Sunday to take another step towards establishing himself as the grown-up who can restore dignity to the right-wing by proposing a middle-of-the-road agenda for changing the face of the legal establishment.
If the debate over the legal establishment until now has been characterized by pro- or anti-Netanyahu agendas or a concern that politicians have too much or too little control over the levers of power, Sa’ar recommends significant change, but with far more nuance.
Netanyahu has been pressing for either an absolute immunity law or “the French law”, which gives temporary immunity to a head of state, either of which are designed to eliminate or indefinitely postpone his public corruption trial for bribery which has already begun.
The common principle behind these laws is that they have nothing to do with a particular philosophical approach, but are rooted in helping Netanyahu with his personal legal situation.
Yamina MKs Ayelet Shaked and Betzalel Smotrich have pressed for the political class to appoint judges instead of the current method which combines judges, politicians and non-politician lawyers.
They have also demanded that the powers of the attorney-general be divided between two offices, one a chief government legal adviser and one a chief prosecutor.
Some in the Likud as well as Smotrich have also called for Knesset probes of certain judicial issues and of some decisions taken by the state prosecution.
Usually when making this last suggestion, these critics ignore the fact that there already is an oversight czar for the state prosecution which reviews its work and often issues critical reports.
Finally, Shaked has demanded that a 61 MK bare majority of the Knesset be able to override the High Court of Justice if the justices veto a Knesset law.
Prior to being indicted, Netanyahu always opposed this, appearing to prefer a super majority Knesset override which the High Court could willingly accept, such as 70 MKs. Since his indictment the expectation has been that he would also endorse a 61-MK Knesset override.
Shaked and Smotrich’s desire to move the goal posts to make it easier to override the legal establishment rests in dismay over its rulings on settlements, the Jewish Nation State Law, African migrants’ issues and other public policy controversies.
They also believe the judiciary and the prosecution should defer to the Knesset since they are unelected officials.
Sa’ar strongly opposes all of Netanyahu’s personal legal changes and in a far more unqualified way than Yamina which vacillates on such issues.
He agrees with Shaked about splitting the attorney-general into separate  legal adviser and prosecutor roles, not because he is against current Attorney-General Avichai Mandelblit or in favor of Netanyahu, but because he thinks that would avoid conflicts of interest.
Simply put, he says that are so many probes of ministers these days that it does not make sense to expect ministers to work with a legal adviser who is also investigating them.
Mandelblit has countered this argument by saying only when the two roles are combined does the attorney-general feel independent enough to defend the rule of law and prosecute corruption without worrying about politics.
Sa’ar did not say on Sunday whether or how he would restructure the Judicial Selection Committee and did not commit himself to having the Knesset oversee the issue as Shaked would like.
But he did commit to public hearings of whoever appoints the judges in order to increase public faith in the process.
The purpose of private hearings has been to get judicial candidates to give fully-detailed answers whereas in public hearings there is concern that judicial candidates will hedge their statements because of the additional scrutiny.
Overall, Sa’ar seems focused more on transparency than on taking apart the current less political method of appointing judges.
Likewise, Sa’ar does not ignore the state prosecution oversight czar, but rather says it should be invested with enforcement powers.
Currently, the oversight czar issues reports, but the attorney-general can ignore those reports and their conclusions.
Again, Sa’ar seems to be opting to strengthen existing mechanisms for oversight instead of granting more power to the political class.
But possibly the most significant issue, whether and how the Knesset could override the High Court, was not on Sa’ar’s official statement.
Speaking to sources from Sa’ar’s New Hope party, The Jerusalem Post has learned that Sa’ar would support a Knesset override of the High Court, but only in conjunction with passage of a Basic Law anchoring in law the High Court’s right to judicial review, which up to now has been disputed.
While Sa’ar does not seem ready to pick a specific number of MKs for the override, the implication was that he would choose a super majority and not a 61-MK majority. He would also require that only a super-majority vote of High Court justices could strike down a Knesset law in the first place.
This might mean a 6-3 or 7-2 majority vote by High Court justices and a 70 MK vote for the Knesset.
What this complex series of trade-offs suggests is that Sa’ar wants to shift power from the High Court to the Knesset, but only while affirming aspects of the High Court’s oversight which Shaked might not want to affirm.
Ironically, this is not so different from the position of the former progressive chief justice Aharon Barak who has said he would endorse a Knesset override of the High Court if it was part of establishing a constitution.
Those on the Left will still reject Sa’ar’s ideas as a slippery slope. The Likud may say that Sa’ar could not implement these ideas because any government he might head would include Yesh Atid and possibly Meretz, who might vote against them.
But what if those parties who voted against Sa’ar’s ideas were offset by votes by the Likud from the opposition?
Sa’ar is still a long shot for the premiership and his ideas for legal changes are anything but simple.
Yet, if he climbs into the prime minister’s chair, he may have put found a formula that could receive wide enough support by wielding a scalpel, not an axe.