Journalists have a tendency to latch onto the least important details in the general picture. I shan’t ruin that journalistic tradition. President Isaac Herzog called his constitutional plan "The People’s Plan". Herzog sees his plan as a worthy one. It’s his right to do so. But for all his exalted status and splendid pedigree, he is not "The People". One of the people, maybe, but the president is not the people.
How much arrogance and conceit is required to present a far-reaching constitutional proposal without the support of the coalition, without consultation with the opposition, without the involvement of the president of the Supreme Court or of the attorney general, and call it "The People’s Plan"?
I may have picked on a marginal detail, but the truth is that this anecdotal detail tells the whole story.
Isaac Herzog, apparently with good intentions, has done immense damage to the ability of the sides to reach a compromise. The moment that the president of the state in his own person presents "The People’s Plan" at 8:30 pm in front of the entire nation and warns of civil war if the plan is not adopted, the chances of a compromise being reached fall dramatically.
The opposition parties announced their support for the plan, some of them explicitly like the National Unity Party, some obliquely, like Yesh Atid, and some with a silent wink. The plan is so good for them that they didn’t even bother with a "the sky is falling" campaign about how bad and biased it is in order to try to gain a few more achievements.
A pretentious plan
Now to the substance: this pretentious plan states that "the arrangements stipulated in this plan are all of a piece. The plan has been constructed with a view to the system of checks and balances that should be maintained between the branches of government, and should be seen as a whole. That is to say, no part of this document stands alone, but is rather dependent on the rest of the parts of the document."
In other words, no cherry picking of just certain parts of it.
The root problem of "The People’s Plan" in my view is that it is written like a seminar paper or the proposal of a research and policy institute. Herzog completely ignores the political reality in which one side won an election and has 64 Knesset seats, and wants to implement its policies.
Even if the winning side wants to compromise, and it ought to compromise, it’s impossible to present a plan that is completely oblivious to the election result and expect the coalition to adopt it. No wonder, then, that the coalition, with one voice and one mind, ruled out the plan, while the opposition welcomed it.
The basic laws problem
Let’s look at the question of "basic laws". According to Herzog’s proposal, a basic law requires a majority of 61 Knesset members in three readings, and then a majority of 80 in a fourth reading, or of 70 if the fourth reading takes place in the next Knesset, and even that with provisos.
In other words, no government will ever succeed in legislating or amending a basic law, because there is no chance whatsoever of attaining a majority of 70 Knesset members, never mind 80. A reminder: even the Basic Law: The Nation State, a declarative law with no practical significance, passed after years of discussion by a majority of just 62 members of Knesset.
True, the plan stipulates that "the court has no power to exercise judicial review of basic laws that have met all the procedural conditions required to legislate them, in accordance with the procedure set out in this document," but if in practice it is impossible to enact a basic law, who cares if the Supreme Court has no power to discuss it? I suggest recalling by what majority the Basic Law: Human Dignity and Liberty passed. In effect, "The People" decided to perpetuate the existing situation and prevent any possibility of changing it despite the coalition’s clear majority.
The haredim received from "The People" an exemption from conscription to be anchored in a basic law. But, what do you know? The plan gives no detail about that. "An agreed arrangement will be formulated for military service or civilian national service. The main points of the arrangement will be legislated in an amendment to a basic law, and will therefore be proof against judicial review." This is a joke. "An agreed arrangement will be formulated" - decades will go by before an agreed arrangement is reached on military service or civilian national service for haredim, and what will happen in the meantime? As mentioned, the plan is supposed to be accepted as a single whole.
Or take the composition of the judicial selection committee, the most sensitive part of the coalition’s entire reform plan, which (wrongly in my view) calls for a coalition majority on the committee.
What does "The People’s Plan" propose? "The judicial selection committee will have eleven members: the minister of justice and two more ministers nominated by the government; the president of the Supreme Court and two other Supreme Court judges nominated by the panel of judges; three members of Knesset, consisting of one coalition member and two opposition members from different parties."
Then comes the best part: "Two representatives of the public, lawyers… appointed by agreement between the minister of justice and the president of the Supreme Court."
The plan also reserves a place on the committee for an Arab member and has other detailed provisions, but we shan’t go into that now.
In effect, the plan gives the president of the Supreme Court greater strength than at present. The president will have the votes of two colleagues, and will need to agree to the appointment of two other committee members. To that should be added two opposition representatives chosen by the opposition.
In order to appoint a Supreme Court judge, a majority of seven of the eleven committee members will be required. Let’s examine the result: two opposition representatives plus three Supreme Court judges will already be sufficient to veto any appointment to the Supreme Court. And that’s before adding the two public representatives appointed by agreement between the president of the Supreme Court and the minister of justice.
On that basis, the plan only makes the coalition’s position weaker than it is today.
Pouring fuel on the flames
The State President has no power to impose a compromise or determine a plan against the coalition’s will. That being so, to all appearances no damage has been done. On the face of it, this is another proposal and another plan, one of many put forward and rejected. In fact, however, the damage is immense. The possibility of reaching other understandings has diminished if not vanished. President Herzog warned in his address to the nation of civil war and bloodshed, but unfortunately he did so while pouring a gallon of gasoline onto the bonfire.
It remains only to understand what motivated Herzog to act as he did. After all, he is not naïve. Perhaps he decided to return to his origins on the left, perhaps he was alarmed by the attacks on him in recent weeks, perhaps this is what he really thinks, and perhaps he has simply had enough, and decided to exit the scene with a loud flourish. One thing is certain: if that’s his exit, it would have been preferable had he never entered.
Published by Globes, Israel business news - en.globes.co.il - on March 16, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.