How does Herzog's judicial reform outline compare to other plans? - analysis

President Isaach Herzog introduced an outline for the judicial reform in a statement on Wednesday.

 LEFT: President Isaac Herzog RIGHT: Constitution, Law and Justice Committee chair MK Simcha Rothman (photo credit: Canva, YONATAN SINDEL/FLASH90)
LEFT: President Isaac Herzog RIGHT: Constitution, Law and Justice Committee chair MK Simcha Rothman
(photo credit: Canva, YONATAN SINDEL/FLASH90)

President Isaac Herzog on Thursday morning called on Israeli leaders and the public to review the People's Directive judicial reform outline that he proposed on Wednesday night.

The long-anticipated outline joins several other proposals for judicial reform. The Rothman-Levin plan is still the main reform outline favored by the coalition, but the Freidmann plan was also warmly received by the reformist camp as a negotiation baseline. Keeping the status quo is still a position favored by some like Labor leader Merav Michaeli.

The different outlines share some commonalities, but in some fields, they depart drastically from one another.

Judge selection committee

The subject that has caused the greatest controversy and angst among political actors is the judge selection committee. Currently, the panel that appoints High Court Justices and lower court judges is made up of the High Court of Justice president, two other justices, the justice minister and another cabinet member, two Knesset members and two Bar Association representatives. They vote with a simple majority for lower court judges, and High Court candidates must have the support of at least seven committee members.

Reformists have criticized that the legal professionals of the Bar Association and justices have interests to form a block together, creating a self-selecting elite that creates ideologically homogenous benches that are not answerable to the electorate. Consequently, reformists have proposed in the Rothman-Levin plan to replace the Bar members with the Constitution, Law and Justice Committee chairman and another cabinet minister. The two judges would be retirees and would have to be approved by both the High Court president and the justice minister.

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

Proponents have also codified a longstanding tradition that one of the panel's MKS would be an opposition member and added a quota for one woman representative from each branch. They would have a simple majority vote in which abstentions wouldn't factor.

Critics of the Rothman-Levin plan argue that the ruling coalition would have an automatic majority on the panel, allowing them to fill the benches with political loyalists and thereby control the High Court. The People's Directive instead would increase the number of panelists from the status quo to 11 with two opposition MKs alongside a coalition MK, and keep two professional lawyers, approved by the High Court president and the justice minister. The vote for High Court justices would be seven out of 11 in agreement.

Reformists have said that this plan would put the right at a disadvantage. They contend that when the left would be in power, the right would have two representatives, and when the right was in power this would rise to four, as they contend that the three judges and two lawyers would not be in their favor.

The Friedman plan changed the formula the most, having a 12-person judge selection committee with four members each for the coalition, opposition and judiciary -- the latter of which would largely serve in an advisory capacity. No more than two members of the opposition could be from the same party. The selection process for the High Court would uniquely have both the opposition and coalition elevate a candidate each, with the justice minister and High Court president having one veto each per term. Lower court judges would require approval by at least two coalition and two opposition members and three judicial representatives.

High Court review of Basic Laws

The reform plans also address the power of the courts once the judges have been appointed, through the matter of judicial review. Judicial review is the ability of a court to strike down legislation in violation of a constitution. Israel does not have a constitution, but it does have quasi-constitutional Basic Laws. In the 1990s, Basic Laws with provisions that prevented other legislation from contradicting them were passed, which the court determined gave them the power of judicial review, and later expanded this doctrine to other Basic Laws.

Reformists argue that the court granted itself far too much power and cobbled together a de facto constitution on its own, usurping the constitutive authority of the Knesset. They contend that the court further crosses the boundaries between government branches with the ability to review Basic Laws.

The Rothman-Levin plan sought to rectify this matter by preventing Basic Laws from being reviewed. Notably, the Herzog and Freidmann plans have followed suit with this provision. However, they have also addressed concerns that a loophole would allow all laws to be passed as Basic Laws to escape judicial scrutiny. There is currently no special method for passing Basic Laws save for calling a bill a Basic Law in legislation. Consequently, the Herzog and Friedman outlines proposed special methods for instituting Basic Laws. Herzog required four readings with a 61 MK majority for the first rounds of voting and an 80 MK majority for the fourth. The Friedman outline also required four readings. If passed with less than 70 votes the law would only come into effect in the subsequent Knesset.

Regular judicial review under the Rothman-Levin plan would be restricted to an extended bench of 15 with a four-fifths consensus. In the Friedman plan, this was altered to a three-fourths consensus. Herzog set the bench size to eleven justices in which two-thirds were in agreement.

Does Israel have derived rights?

Another element of the current system of judicial review is derived rights. Israel lacks an exhaustive regime for human rights, with the High Court applying judicial review to rights that aren’t explicitly enumerated in the law by inferring them from Basic Law: Human Dignity and Liberty. Constitution, Law and Justice Committee chairman Simcha Rothman has explained that the reform would require no more deriving of rights. This has concerned the anti-reformist camp, who contend that the reform essentially removes human rights protections extended by the court. The Herzog plan set to rectify this both by codifying the deriving of rights and by calling for a parallel negotiation to create a Charter of Rights and Freedoms.

The override clause

Another way in which reformist concern about the extensive power of judicial review has been addressed is the override clause. The clause has been discussed for many years and would allow for the Knesset to overturn the striking of legislation by the court. Most of the debate around an override clause centers on the amount of MKs needed to activate the legislative power. The Rothman-Levin plan would have a simple majority to either overturn judicial review or preemptively immunize legislation from striking. The protection would last up until one year after the implementing Knesset would be dissolved.

The Friedman plan altered this, in which a 61 majority would mean that the override would come into effect in the following Knesset, and 65 and more votes were needed for an immediate override. The Friedman override would last five years from the law coming into effect. Notably, the Herzog plan lacked details on the override, reportedly because the debate on the number of votes persists.

Reasonableness clause

Another clause that the reforms have addressed is the reasonableness clause. The standard passed on into the Israeli system from English common law allows the High Court to interfere in administration that is beyond the scope of what a reasonable and responsible authority would entertain. Critics have argued that the standing of the power is too broad and its implementation subjective.

While Justice Minister Yariv Levin said that he didn't recognize the clause in the initial announcement of his plan, Rothman later said that it would be restricted to the actions of elected officials. Herzog also limited the power on the matter of ministerial policy but said that it still applies to other state and public authorities.

The reasonableness clause especially raised the ire of the coalition when it was used by the court to order Prime Minister Benjamin Netanyahu to remove Shas Chairman Arye Deri from his ministerial posts due to his extensive criminal past. Since then, the coalition has sought to pass a law preventing the court from interfering in ministerial appointments. This law is seen by the opposition as part of the reform. Both the Friedman and Herzog plans would also restrict the court from interfering in ministerial appointments.

Status of government legal advisors

Another major issue in the reform plan, which has yet to have been written by the coalition into a bill, is the status of government legal advisors.

Currently, legal advisors' opinions are independent of the desire of the government and are legally binding. Critics have contended that this puts them at odds with the government, especially so when they are the standard representatives of officials and state bodies in court. They also argue that policy decisions by the government are restricted by unelected civil servants.

Reformists have called for legal advisors' opinions to conform to the policies of the government and not be legally binding for officials. They also want to be able to hire private representation in courts. The opposition contends that this would remove another check to the system, and lead to the proliferation of illegal, inefficient and amateurish laws.

Herzog wants to keep the opinions of legal advisors independent, but with the caveat that if there is excessive disagreement between an official and advisor, they can be transferred with the approval of a special committee. Legal opinions would also remain binding, but in what many see as a concession to the coalition, officials would be able to seek outside representation. Critics have noted that the special committee would be under the control of the Attorney-General. The Friedman proposal would also keep the opinions of the advisors independent but would not make them legally binding.

While Herzog has put his weight behind the People's Directive, the negative reaction to the outline from the coalition may mean new negotiation outlines will be presented to the public.