After three months of political turmoil, political leaders finally entered President Isaac Herzog’s residence on Tuesday for the first negotiations on judicial reform. As hard as it was to get the coalition and opposition to the table, the complexity of the negotiations will be just as difficult.
The negotiation is complicated not just by the controversy of the judicial reforms, but the lack of uniformity among the negotiating camps, the strict redlines and new demands by the opposition. Success will depend not only on the coalition and opposition but due to the chosen negotiation framework, on the mediator, Herzog.
The two sides come to the table with very different goals and demands. The coalition is coming to the table seeking to introduce a judicial reform, as first proposed by Justice Minister Yariv Levin in the first week of January.
“The reform side has a relatively clear aim,” explained Bar-Ilan University law professor and senior Kohelet Policy Forum fellow Avi Bell. “It wants to undo the 1980s-2000s ‘revolution’ carried out by Aharon Barak’s High Court [of Justice], both by limiting or reversing some of its key doctrines – such as reasonableness review and judicial cancellation of Knesset legislation – and by ensuring greater balance on the High Court.”
Various proposals have been made to achieve these objectives. Constitution, Law and Justice Committee Chairman Simcha Rothman sought to alter the composition and procedures of the Judicial Selection Committee to have more control by elected officials and a ruling coalition rather than legal professionals and the judiciary.
Rothman had also pursued bills that would have prevented judicial review of the quasi-constitutional Basic Laws by the High Court and restricted the use of review of regular legislation. One paused bill contained a provision for override clauses, which would allow the Knesset to overturn the High Court’s striking of laws.
"We need to preserve the rule of law, and therefore we should keep the attorney-general and the legal advisers professional, just like they are today.”Dr. Amir Fuchs, Israeli Democracy Institute
Levin has also called for the end of the use of the reasonableness standard, which allowed the High Court to interfere in matters of administrative law that were beyond the scope of what a responsible authority would undertake.
While no bill has been submitted, Levin had also proposed to alter the role of government legal advisers, making their opinions non-legally binding, requiring them to be supportive of government policy and to allow government officials to seek outside legal representation.
Discussing the things that haven't been said
While negotiations are nominally about judicial reform, the opposition is no longer merely against certain aspects of Levin and Rothman’s proposals or seek to moderate them, but have their own demands for the future of the State of Israel.
“They will also have to talk about things that were not in the reform. Yariv Levin didn’t talk about the entrenchment of Basic Laws,” said Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute.
While Fuchs said that Herzog didn’t call it a constitution, that’s what it was in essence. Yesh Atid leader Yair Lapid did explicitly call for the writing of a constitution in response to Prime Minister Benjamin Netanyahu’s Monday announcement of the pause of judicial reform legislation. Lapid said that the constitution should be based on the Declaration of Independence, which is related to the other objectives of the opposition, protection of rights.
“Completing the bill of rights, the right of equality, right of freedom of speech, things like that will be on the table too,” said Fuchs, noting that Herzog’s People’s Directive judicial reform outline included details on a charter of rights.
There are some issues that both sides may be able to compromise on. Hebrew University of Jerusalem law professor Barak Medina said he thought a compromise could be found on acceptance of creating a special method for enacting Basic Laws and ending judicial review on Basic Laws. Fuchs said he also believed that common ground could be found on more demographic diversity among judges, as well as restricting judicial review from lower courts.
Bell said that if the opposition aims “to defend the High Court’s unlimited power, as established by Barak’s revolution, there is no middle ground. If the anti-reformists are willing to accept some limits on the court, then compromise formulas are readily available on all the doctrinal questions.”
In their demands, both sides also come to the negotiation with redlines.
“In a distributive negotiation, each side says to themselves – maybe without a plan – ‘Listen, from here on below or above this point I cannot go. That’s my redline... You cannot negotiate,” explained Dr. Chanan Goldschmidt, a Reichman University professor, lawyer and trained psychologist with extensive experience with mediation in divorces.
Redlines may be openly expressed by negotiating sides, but may also obfuscate them to create the appearance of concession.
Both sides have often cited the Judicial Selection Committee as the biggest issue in the negotiation.
“The issue of judicial appointment is at the heart of the debate,” said Medina.
“The appointments question is trickier,” said Bell.
Fuchs said that “From my point of view, the redlines should preserve the fact that our court is independent, 100% independent. And it doesn’t mean that there has to be necessarily a veto for the judges. But it means that the nomination cannot be political.”
He added that a second redline was the protection of human rights, as “even if the judges are 100% professional like they are today if you give the coalition a 61-majority override they can just override every decision of the court,” and that would constitute unlimited power.
“I think at the end of the day there will be a compromise only as part of a package deal that will include a change of the composition of the coalition,” said Medina. “If there isn’t an agreement on a new coalition, it’s hard to believe that there will be an agreement.”Barak Medina, Hebrew University of Jerusalem
“Also we need to preserve the rule of law, and therefore we should keep the attorney-general and the legal advisers professional, just like they are today.”
Medina said he believed Herzog’s attempt at an outline, which was rejected by the coalition, “is a reasonable one and is something that is the minimum or the maximum, as you would say, that the opposition should agree to. They [the opposition] cannot agree to additional compromises over those that are already incorporated in the president’s suggestion.”
Kohelet researcher Russel Shalev noted that the coalition had already softened down to its redlines on the Judicial Selection Committee.
“What’s being proposed now is that in the course of four years, a coalition will be able to select two judges, and then the third one will require the consent of representatives of the opposition, and then a fourth one requires the consent of the judges,” Shalev explained. ‘That is very far from being extreme.”
GETTING AROUND redlines is difficult, but can be done. In a distributive negotiation, sides are dividing up a pie of goods – in this case different demands that have different values to one another. However, if an integrative approach is taken by Herzog, the “pie” can be expanded to provide enough value to even shift redlines.
“You can, during the negotiation, give more utility for each one of the parties and therefore expand the pie to be elevated between them and bring more to the table negotiating – what we call a win-win situation,” said Goldschmidt.
This would mean going beyond the points of the reform proposal and the demands of the opposition, and for Herzog to propose other unrelated political goods that the camps may want.
“I think that an essential part of resolving the current crisis is some plea bargaining regarding Netanyahu’s trial, although it’s not formally part of the story,” noted Medina.
Critics of the reform have alleged some of the reform plan and affiliated legislation such as the Incapacitation Law and Deri Law 2 to extend from personal desires of the coalition leadership.
Bell noted that the desire of some in the opposition camp wasn’t really about the judicial reform, but “to use the controversy to destabilize the coalition and move up elections.”
Another way around a redline is to change the formula on which the negotiation and the redlines are predicated.
“If you look at it from a bigger view than just negotiation, you can say, ‘listen, forget the situation in which we are in now,’ take a new idea, take this [Judicial Selection] Committee and throw it away,” said Goldschmidt.
Could Israel start from scratch?
An entirely new system, such as directly elected High Court justices or a Knesset vote or any other unconsidered system could be proposed to avoid an otherwise dead-end system.
Another solution to redlines extends from the fact that the coalition and opposition are not completely monolithic negotiating bodies. The coalition is made up of different parties, as is the opposition. They are not just negotiating with one another, but internally as well.
There could be additional negotiations from within factions in the coalition and opposition to accept certain reform frameworks conditioned on forming a new government together.
“I think at the end of the day there will be a compromise only as part of a package deal that will include a change of the composition of the coalition,” said Medina. “If there isn’t an agreement on a new coalition, it’s hard to believe that there will be an agreement.”
Medina noted that this would likely require plea bargains for Netanyahu.
Internal divisions may create as many complications as they do negotiation opportunities.
The problem with non-monolithic negotiating parties, said Goldschmidt, is “Who is the one to negotiate with? Who is the one who will decide during the negotiation, who is the one who will sign if they reach an agreement, and who will take it and put it into action?”
Goldschmidt said that “as a mediator, I want to convince the one that will sign the agreement, not those who are sitting in front of me.”
Medina said that he didn’t think that the current coalition would be able to agree to an outline like the People’s Directive.
There have been multiple reports in the media about Levin threatening Netanyahu that he would resign if he would halt the legislation. A deal was struck between National Security Minister Itamar Ben-Gvir and Netanyahu to allow the legislative pause, in return for affording the Otzma Yehudit leader power over a national guard.
All these internal issues can distract the coalition from its negotiating objectives, and come out with more soft or extreme demands depending on the internal negotiations, even if they are not realistic reflections of the events at the President’s Residence.
“The coalition is relatively unified in valuing judicial reform to restore democratic governance and in wanting to protect national institutions such as the army. Politically, the coalition desires broad support. In practice, this divides the coalition between those who prioritize judicial reform and those who favor appeasing anti-reformists,” argued Bell.
“The opposition is more fractured. Some seek to defend the unlimited power of the judicial class, while others are ready to accept a limited restoration of parliamentary democracy.”
The public can also be seen as a party to the negotiations, Shalev said, noting that the government needs “to make good on its promises.”
Another important factor is the mediator, who is just as much a party to the negotiations as the two sides.
“Mediation is a very special negotiation,” said Goldschmidt. “It’s a negotiation in which the main player is the mediator. And who is the mediator – a lawyer or [the] president of the state.”
As president, Herzog can influence the negotiations with his media presence, making statements to use public pressure to keep both sides to the table. Herzog had already stated that the negotiations had a good tone.
There is the issue that some coalition members may not see Herzog as a legitimate mediator.
“The fact is that he already had a golden opportunity, and what came out was a very one-sided proposal, and it made things worse,” said Shalev. “So I hope that he learned his lesson.”
With so many complicated factors, it is difficult to predict the outcome of the negotiations.
“I hope that whatever comes out is something that is balanced and receptive by both sides,” said Shalev.