Foreign Minister Gideon Sa’ar and Justice Minister Yariv Levin on Thursday announced a potential historic judicial compromise that – if accepted by enough political and legal constituencies – could end the multi-year battle over the shape of the legal establishment.
At the surface level, the proposal, some of which is outlined in principles that will need to be further translated into concrete policies, involves compromises from both the progressive and conservative sides of the spectrum.
Levin has agreed to stop actively blocking Isaac Amit from his appointment as acting chief justice to be converted into a permanent one with all of the additional powers and legitimacy that implies – though he will boycott the Judicial Selection Committee vote. Until now, the justice minister has wanted a more conservative or government-friendly chief justice.
Levin also agreed to an arrangement that does not seem to allow the coalition to push through any judicial candidate it wants without some support either from the Supreme Court representatives on the committee or from members of the committee selected by the opposition.
Basic Laws
Finally, Levin has agreed to pass certain Basic Laws that would limit any given governing coalition’s ability to suddenly and arbitrarily pass Basic Laws that have a political and short-sighted flavor by setting certain limits on what can be declared a Basic Law.
On the flip side, the Supreme Court and the opposition would need to swallow that the Supreme Court representatives on the committee could not by themselves veto a candidate for the Supreme Court.
Further, they would lose the virtually guaranteed majority they have on the committee by virtue of two members of the committee being from the Israel Bar Association.
The liberal side would only need to agree to new limits on judicial review of Basic Laws and regular laws, though these limits would not be as absolute as what Levin has demanded in the past.
Practically speaking, the above balance would be achieved by the two members of the committee who the Bar Association currently selects being changed to one member being a veteran lawyer picked by the coalition and one member being a veteran lawyer picked by the opposition.
Further, the two Knesset members on the committee, which have traditionally included a coalition and opposition member, will be formally mandated to have this breakdown.
The vote for new Supreme Court justices will need to be by a majority vote of five, down from seven, which had given the Supreme Court representatives an effective veto, but will require at least one opposition-controlled vote.
In cases where there is a deadlock for a Supreme Court appointment, the coalition and opposition will each suggest three candidates, and the other side will pick one of the three candidates suggested – meaning the coalition will pick from the three opposition candidates and the opposition will pick from the three coalition candidates.
The devil could be in the details, given that in some past Knessets, an “opposition” member of the committee cut deals with the coalition to vote for its candidates in exchange for political victories in other areas, which should not have been taken into account.
This means that part of whether this compromise will work will depend on how well-insulated the coalition and opposition members of the committee are from each others’ political offers.
It will also depend on when and whether all of the limits on coalition Basic Laws powers are passed into law and whether some prior politicized such Basic Laws will be repealed or grandfathered into the new system.
At the heart of the dispute has been that progressives have felt that successive governments have abused their power and trampled on minority and opposition rights, whereas conservatives have felt that the courts have abused their power and thwarted the will of the electorate.
In the background of all of these fights, Prime Minister Benjamin Netanyahu has also seemed to use the threat of a judicial overhaul to try to press the courts or prosecution into dropping the public corruption case against him or to grant him a lenient plea deal.
It was unclear how the compromise might impact that issue.
Head of the Bar Association Amit Becher strongly criticized the matter, saying that "The newly published framework is a maneuver by the justice minister and is not a "compromise" or a "solution to the crisis."
"It is rather a deceptive and dangerous proposal aimed at implementing the principles of judicial reform," he added.