Herzog's words in the shadow of the legal revolution at the end of a boating course.
March 1, 2023 (from live on the Navy's Facebook page)
State President Yitzhak Herzog said last night that there is a possibility of a compromise in the legal plan promoted by the Netanyahu government, but he did not specify its details and received a lot of criticism due to the fact that the process was not done transparently to the public.
Now, we are trying to put order in the compromise draft, which was apparently formulated by the Purpose Institute in collaboration with the Ecclesiastical Forum.
The draft that is being worked on at the President's House enshrines, among other things, the principle that a Basic Law will be accepted by a majority of 61 MKs in three readings in the Knesset that proposed the Basic Law and in a fourth reading in the Knesset that will follow it with a majority of at least 70 MKs.
It should also be noted that the current outline is about legislation that will come into effect within a year and at that time, the government can enact almost anything it wants that goes against the outline.
The advantage:
the Knesset strengthens the status of the fundamental laws and the procedure answers the fear that every fundamental law will be rejected by the High Court.
The disadvantage:
The draft does not allow a substantial criticism of the content of the basic laws, in which if there is no anchoring of human rights against a negative change in the basic laws.
"The way of acceptance of the basic laws today is that there is no procedure that distinguishes between the enactment of an ordinary law and a basic law," explained Lavalle!
Prof. Shahar Lifshitz, from the Faculty of Law at Bar-Ilan University who took part in the efforts to reach agreements on the reform.
"The proposal currently strengthens the status of the Basic Laws and prevents their misuse.
Dr. Ronit-Levin Schnor from Reichman University and the Forum of Lecturers and Lecturers for Democratic Law thinks otherwise: "The absence of any substantial limitation on the subjects that Basic Laws deal with - this is an opening for the enactment of laws that are not subject for judicial review and contradict the values of the Declaration of Independence".
Discussion in the Constitution Committee of the Knesset (photo: photo processing, Flash 90 Yonatan Zindel)
Disqualification of laws by the full composition of the Supreme Court
According to this principle in the outline, the Supreme Court will be able to disqualify laws and non-fundamental laws by a full composition of 15 Supreme Court judges only.
However, a decision to invalidate a law shall be made by a majority of at least two-thirds of the judges.
If the panel decides that a law should be invalidated, but does not obtain a two-thirds majority, the court may establish a declaratory remedy of the law's incompatibility.
The advantage:
there is a deviation from the requirement of Justice Minister Yariv Levin, according to which an absolute majority of the court will reject laws and whenever there is relief.
The disadvantage:
the fear of creating strategic rulings and harming the independence of the judiciary.
A judge who knows that only a certain majority can invalidate laws or leave them as they are may be biased because of this in his ruling.
Prof. Lifshitz explained: "Rejecting laws is a dramatic thing and two-thirds is a realistic requirement, which allows for a correct balance between the judges who are considered conservative and the liberal ones. It should be remembered that the draft does not have a superseding clause, so it makes sense to demand such a majority that reflects respect for the Knesset."
On the other hand, Dr. Levin-Shnor explains: "The necessary composition and the majority of it - 10 out of 15 - is a requirement for the composition and the majority that are not practical.
This means allowing unlimited legislative power to the coalition majority in the Knesset.
As long as a special procedure for judicial review is established, the requirement of a composition of 9 judges and a two-thirds majority of them must be satisfied."
The High Court with an expanded composition (photo: screenshot, Supreme Court)
The enhancement paragraph
According to the outline, the enhancement paragraph will not be enacted, but a legislative solution will be found to the issue of ultra-Orthodox recruitment.
The practical solution proposed in the case is to amend the Basic Law: The Army so that principles of an agreed upon outline will be inserted as an amendment, and details will be stipulated in the law and these principles will be immune from judicial review.
The advantage:
the Knesset will not be able to bypass the High Court if the court rejects a law, thereby preventing a constitutional crisis.
The disadvantage:
issues such as the recruitment of ultra-Orthodox to the army will receive an "exemption" in the form of basic law legislation, which is an opening for more attempts to bypass the High Court through basic laws.
"The one who says the last word is the court," congratulates Prof. Lifshitz.
"It is about a proper balance because a superseding clause on any issue can harm human rights. In special circumstances and in a special procedure, a superseding clause is also not a completely wrong idea as long as there is no violation of protected human rights."
Selection of judges
The committee for selecting judges will be expanded from nine members to 11.
The representatives of the government will be the Minister of Justice who will chair the committee and two ministers appointed by the government.
The representatives of the Knesset will be three in number: one will be elected by the coalition and two by the opposition, provided that there are not two MKs from the opposition who belong to the same faction. The representatives of the judiciary will be: the president of the Supreme Court and two other judges of the Supreme Court who will be determined according to their seniority in the Supreme Court In addition
,
there will be two public representatives in the form of jurists such as lawyers, former legal advisors or members of the academy who are qualified to be appointed supreme judges according to the Law of the Courts and they will be chosen by consensus by the Minister of Justice and the supreme president. The committee's decisions regarding the appointment of supreme judges, according to the outline, will be by majority of at least six members of the committee. The composition of the committee for selecting judges for the lower courts will be in the same format, provided that it will be possible to appoint, with the approval of the committee, a professional alternative representative instead of the elected representatives.
The draft also indicates that a decision of the Committee for the Selection of Judges on the termination of a judge's term will be made by a majority of at least eight committee members, including the Minister of Justice, a Supreme Court judge and at least one representative from the opposition.
The advantage:
the composition of the committee does not have an automatic majority for the coalition, which would allow it to appoint the judges.
The disadvantage:
the current composition of the committee may reach an impasse and disagreements in the appointment of judges to the Supreme Court.
The previous composition of the committee for the selection of judges (photo: official website, no)
And what do the experts think?
"There is a withdrawal here from the Sa'ar Law which stated that seven members are needed to appoint a judge to the Supreme Court and therefore we need to go back there to create cooperation between the judges and the coalition," thinks Prof. Lifshitz.
"According to the version that is proposed, it is possible to be satisfied with a simple majority of six and thus there is a withdrawal from the arrangement that exists today."
In Dr. Levin-Schnor's opinion, she thinks that "this is a model for the politicization of the judiciary, which seriously harms the principle of separation of powers.
The decision rule must be 8 out of 11 and the election of the supreme president according to seniority is required to be anchored in the basic law.
Appointment of legal advisors
According to the compromise draft, the Attorney General's position regarding the interpretation of the law will reflect the government's position, but the government in its plenary may, in exceptional cases, exceed his position in a procedure that will take place through a government decision.
In relation to the professional level, the opinion of a legal advisor in a government office on a legal question determines, from the point of view of all employees of the office, the existing legal situation,
The draft also states that the government will be entitled to terminate the position of legal advisor to the ministry if there are substantial and prolonged disagreements between the minister and the legal advisor, creating a situation that prevents effective cooperation.
This decision will be after receiving the opinion of a professional committee that was established in the Civil Service Commission, which includes the Attorney General, the Civil Service Commissioner, a former CEO of a government ministry appointed by the Civil Service Commissioner and the Attorney General. The advantage: independence of
the
attorneys be saved
The disadvantage:
the government can override the ombudsman's opinion in a plenary decision. In a situation of coalition discipline, this is easily achievable
. A possibility for the government to reject the ombudsman's position in the plenum," explains Prof. Lifshitz.
Will independence be preserved?
Legal Adviser to the Government Gali Beharev Miara (Photo: Shlomi Gabai)
The reason for reasonableness
in the draft is about reducing the courts' use of the reason for reasonableness on policy decisions, including government-approved appointments that do not harm protected human rights.
The advantage:
there will be less conflict between the government and the courts.
The disadvantage:
this is an interpretive reason.
The courts can use other reasons and thus there is a fear that the conflict between the judiciary and the executive branch will also come this way.
In addition, it should be mentioned that Aryeh Deri was disqualified from serving in the government on this ground and the reduction of the probable cause is expected to cancel his disqualification.
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