President Herzog's ‘People’s Directive’ reviewed

President Isaac Herzog presented his draft “People’s Directive” for judicial change on March 15, but within minutes it was rejected by the government. You can read the draft plan in English here: https://www.mitve-haam.org/ (scroll down and click on “The People’s Directive”). We consider below some of the anticipated consequences for taxpayers should the draft plan somehow get going.

Background:

The government is pushing ahead with judicial changes to change a situation in which it accuses elitist judges of overturning laws enacted by the Knesset. Opponents of the would-be “reformers” claim that this concentrates too much power in the hands of elected officials and the current outcome has been mass demonstrations and turmoil.

Enter the President

President Herzog is not only a figurehead official, he’s a smart lawyer and following are excerpts from his plan.

Purpose: To outline the basis for legislation procedures which will be promoted by broad consensus in the Knesset. 

Basic laws: Basic Laws are the foundation for a state constitution, established according to the founding principles of the Declaration of Independence, while anchoring the values of Israel as a Jewish and democratic state. A Basic Law would only be enacted after four readings in the Knesset (as opposed to three for ordinary laws) and would have to receive a majority of at least 61 votes in the first three readings and 80 in the fourth reading (or a majority of 70 members in the Knesset which follows the one that voted on the law in the first three readings).

Judicial review: No court would have the authority to exercise judicial review of Basic Laws.

The High Court of Justice would have exclusive jurisdiction in determining that a regular law is invalid if the court finds that the law is in contradiction of the provisions of a Basic Law – and this would have to be determined by an expanded panel of no fewer than 11 justices who would have to reach a two-thirds majority verdict to invalidate the law.

Judicial review of legislation will continue to apply to the full extent of the rights derived from the right to human dignity, including the right to equality.

National service: An agreed outline for military service or civilian national service legislation shall be set forth in a Basic Law.

Selection of judges:  A revised makeup of the judges’ selection committee is proposed comprising 11 members: three ministers, one coalition MK, two opposition MKs, three Supreme Court justices and two public representatives who are lawyers.

The government strongly criticized this proposal, saying it should control judge selection as it has been democratically elected.

Establishing basic rights:  A Basic Law: Human Dignity and Liberty shall formally codify the right to equality, freedom of expression, opinion, demonstration, and assembly.  A constitutional process will be initiated with public participation at the President’s Residence.

Reasonableness of government decisions:  A court will not have the right to determine whether decisions made by the full government are reasonable in matters of policy, and appointments of ministers will not be open to court review. Decisions pertaining to the appointment of individual ministers will not be overturned unless the are deemed to be arbitrary or capricious.

Legal advice to the government: The opinion of the Attorney General and legal advisers to the government ministries regarding the law would be binding for the offices, departments and agencies in which they serve – but not regarding draft bills.

A minister may initiate the removal of a legal adviser from their post if there are substantial and ongoing disagreements between them that prevent effective cooperation. This would be subject to the approval of a special committee.

Our comments

All sides want democracy but not all sides understand the need for a separation of powers to ensure checks and balances. A written constitution saying so would help. Here’s why.

In business, large corporations use a system of internal checks to ensure nobody can commit major fraud and embezzlement and auditors are required to verify internal check exists. Internal checks involve a division of duties between different people. Never the twain shall meet.

Similarly, governments collect and spend vast amounts of revenue and require internal checks and a separation of duties.

Examples

In the Israel Tax Authority, there is a division of duties between tax assessors and tax collectors.

President Herzog’s draft goes further. For example, suppose hypothetically that a government wanted to pass a measure imposing 100% tax on left-handed people. If the measure were a Basic Law, it would require an majority Knesset vote of at least 80 in its fourth reading – an unlikely scenario.

If the measure were a regular law, the Hight Court of Justice could strike it down on grounds of inequality.

If the measure were a full cabinet decision, Knesset legislation would presumably still be needed.

If the measure were to have been introduced by one minister, the court could reject it because it is arbitrary or capricious.

To conclude: Israel needs checks and balances. The President’s draft plan is worth considering and this author favors a comprehensive US-style written constitution.

The author is an Israeli citizen and an accountant who has studied constitutional affairs.

leon@h2cat.com