Two professors of law - Prof. Yuval Elbashan and Prof. Daniel Friedman together with General (res.) Giora Eiland and Dr. Giora Yaron have formed a compromise outline plan on Israel's judicial reform to bridge the wide gaps between the government coalition and the opposition. For the first time Minister of Justice Yariv Levin has even announced that "This is the first outline plan that thinks out of the box." He added, "There are good intentions and it will be examined." However, the opposition is against the plan, among other things, until the current Knesset legislative procedures on Levin's plan are halted.
But it does look like the first step has been taken towards an eventual compromise. "Globes" dives into the details to see how Knesset law might still be disqualified by the Supreme Court in the compromise proposals, who will choose the Supreme Court judges and what will be the status of legal advisors.
Basic Laws
A special majority for amendments and legislation
The compromise proposed by Profs. Elbashan and Friedman includes five main parts. The first is regulation of the Basic Laws, which are not currently formerly anchored in anything. Currently these are laws that can be enacted and repealed with a simple majority and this creates many problems and difficulties and allows unhindered amendments and repeal of Basic Laws.
The Elbashan-Friedman compromise resolves this issue by declaring that Basic Laws are immutable while setting rigorous conditions for their enactment and amendments in them: four Knesset readings, with the first reading requiring a majority of 70 MKs or more, or approval in two successive Knessets.
Elbashan and Friedman also propose that the two Basic Laws dealing with Human Dignity and Liberty and Freedom of Occupation be re-enacted by the Knesset with a majority of 70 MKs or more. They also propose that these laws will require a majority of 70 MKs or more for any amendments.
Disqualifying regular laws
With a majority of 11 of the 15 Supreme Court judges
According to the Elbashan-Friedman compromise, regular laws will only be struck down with an 11 out of 15 majority or more of the Supreme Court judges.
On everything regarding the override clause (in other words Knesset reaffirming laws despite being struck down by the Supreme Court), the compromise plan presents two different tracks. In the first track with a majority of 65 MKs and in the second track with a simple majority of 61 MKs but during two successive Knessets and only after six months from the swearing in of the second of the Knessets. In this way the architects of the compromise plan will prevent the possibility of individual rights being trampled by a temporary majority. Friedman and Albashan also propose avoiding judicial review of a law to which the override clause has been applied for the first five years from its entry into force.
Appointment of Supreme Court judges
Without a coalition majority
Regarding the appointment of judges, the outline plans proposes two different alternatives, designed to provide the Minister of Justice's proposal, in which the coalition would have an absolute majority in selecting judges' choice - and in practice full control of the selection committee's decisions. According to the first alternative, the Judiciary Selection Committee would be made up of 11 members: three government representatives (Minister of Justice and two other ministers), chairman of the Constitution Committee (from the coalition), two other MKs selected by the coalition and two Knesset members selected by the opposition. In addition, the Supreme Court President and two other judges or retired judges would sit on the committee.
According to this proposal, the coalition would have a majority (six out of 11) but to balance this a majority of eight members would be required to choose a judge. In other words the coalition would have to persuade two of the three judges or members of the opposition to obtain a majority.
The second alternative proposes making the judges sit on the committee solely as observers but at the same time complete equality on the committee with four members for the coalition and four for the opposition.
Under this proposal, every time that two Supreme Court judges will be chosen, one would be from the coalition and one from the opposition. In addition, the Minister of Justice would be given the right of one veto in each term of office on an opposition candidate, while the President of the Supreme Court would be given the right of veto of one coalition candidate in each term and one opposition candidate.
Legal advisors
There will be no positions for confidants
According to the proposed outline plan, legal advisors will not be a job for the minister's confidants as Levin has proposed. However, contrary to the current situation, in which the legal advisors advice can be bypassed by hiring a private lawyer who represents the government only with the approval of the Attorney General - the outline plan proposes that Ministries can do this without approval from the Attorney General. In other words, legal advisors will remain a professional appointment, but in cases in which the ministries go to court, they will be able to take the issue to the court while being representing by a private lawyer.
The reasonableness clause
Will be reduced but not canceled
According to Levin's proposal the reasonableness clause would be completely cancelled. Friedman-Albashan propose reducing use of the reasonableness clause but not canceling it. Courts will be able to use it in order to strike down specific administrative decisions but not more major decisions by elected representatives such as appointments and allocation of budgetary resources.
Published by Globes, Israel business news - en.globes.co.il - on March 9, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.