President Herzog's proposed judicial reform fix lacks critical aspects - opinion

President Isaac Herzog called, on Sunday night, to stop the attempt to legislate a fundamental change in Israel’s regime on the basis of a coalition majority alone and his statement that such a fundamental change must be carried out on the basis of broad consent gained wide public attention. Unfortunately, the president’s call to halt the legislative proceedings has so far gone unheeded, as on Monday morning, the Knesset Constitution, Law and Justice Committee approved draft legislation aimed at implementing the regime changes, for a first reading in the Knesset plenum.

As the president said, when taken together, all the parts of the proposed reform raise deep concern that the democratic foundations of Israel will be harmed and that it is of utmost importance that a professional, independent judiciary be maintained. The president himself stated that an essential condition for any change is the enactment of the Basic Law: Legislation.

While we acknowledge that the president did not enter into details and presented only general principles, we are of the opinion that in a number of critical aspects his proposal is lacking. As long as these aspects are not adequately addressed, the struggle against the regime revolution must continue and even be intensified.

What was President Herzog's proposal lacking?

First, the president’s proposal does not address the minimal conditions necessary in a democratic regime to protect human rights. We believe that alongside a Basic Law: Legislation that will establish the procedure for enacting basic laws, it is essential to enact a basic law that guarantees the human rights of all.

Second, according to the president’s proposal, basic laws will be immune from judicial review if enacted according to a specific procedure, to be determined by consensus. The problem is that in the absence of a basic law that guarantees the protection of human rights, it would be possible to enact a basic law that violates human rights. Since such a basic law would not be subject to judicial review, it is unacceptable that all basic laws should be immune from judicial review.

Third, the president proposes to include in the Basic Law: Legislation a mechanism for overriding a court’s ruling that invalidates a law “through a majority and process to be established via dialogue and agreement.” Over and beyond the principled difficulty with an override clause, the proposal does not limit the rights that may be overridden.

IT MUST be emphasized that there are basic rights that may not be overridden in a democratic regime even by a majority decision; similarly, there are rules of the game, first and foremost among which are free, fair and periodic elections that cannot be overruled.

Fourth, the president’s proposal for the composition of the Judicial Selection Committee does not relieve the concern raised by the coalition’s proposals. Since some of the Knesset representatives will be members of the coalition who support the government representatives, the proposal for equal representation of the three branches could, in practice, leave the de facto control over appointments in the hands of the coalition.

A fundamental principle for the composition of the Judicial Selection Committee must be that the coalition does not have an absolute majority or alternatively, that a special majority will be required for judicial appointments so that the coalition alone will not have control over the appointments.

Fifth, the president proposes that the details of all the changes be approved by a broad consensus but does not outline procedural principles for such consensus in a manner that protects the representation of minorities. It is imperative at this moment in time to provide a balanced, thorough and practical process so that any change resulting from this process will apply only from the next Knesset.

In conclusion, as a starting point, the president’s proposal accepts many of the dangerous assumptions underlying the current coalition proposal. We are of the opinion that in any dialogue these assumptions must be addressed and resolved.

From the reaction of MK Simcha Rothman, chair of the Constitution Committee, it is clear that he is speaking in two voices: on the one hand, he ostensibly displays willingness for dialogue but at the same time he has no intention of stopping even for a moment and intends proceeding with the legislation and preventing public discussion even if they are facilitated by the president.

Monday morning’s vote by the committee proves this point. We have already seen that the coalition shows no restraint and that nothing will prevent it from a legislative blitz, even in the middle of the night.

We must not give up the struggle until a full bill of rights and the independence of the Knesset and the courts are guaranteed.

The writers are co-founders of The Israeli Law Professors’ Forum for Democracy, which unites the majority of teachers of public law in Israel.