President Herzog presented his draft “People’s Plan” for judicial reform on March 15, 2023. 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 Israeli government is proposing judicial reform to deal with allegedly elitist judges who overturn laws. Opponents claim this concentrates too much power in the hands of certain persons, even if they were elected. The result: demonstrations and turmoil.

Enter the President:

President Herzog is not only a figurehead, he’s a clever lawyer. Following are excerpts from his latest draft plan.

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

Basic laws: Basic Laws are the foundation for the state constitution, established according to the founding principles of the Declaration of Independence, while anchoring the values of the State of Israel as a Jewish and democratic state.  A Basic Law would be enacted in four readings in the Knesset – accepted by a majority of 61 in the first three readings and 80 members 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 Supreme Court, would have exclusive jurisdiction to determine that a (regular) law is invalid due to a contradiction with the provisions of a Basic Law – in an expanded panel of no less than 11 judges, and by a majority of no less than two-thirds of the panel.

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 civil-national service legislation shall be set forth in a basic law.

Selection of judges:  In brief, a new judge selection committee is proposed with 11 members: 3 ministers, 1 coalition MK, 2 opposition MKs, 3 Supreme Court judges, 2 public representatives who are lawyers. The government strongly criticized this proposal, saying it should control judge selection as it is 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 House.

Reasonableness of government decisions:  The reasonableness of decisions of the (full) government in matters of policy and appointments of ministers would not be reviewed by a court. Decisions of (individual) ministers would not be overturned unless they were arbitrary or capricious.

Legal advice to the government:  The opinion of the Attorney General and the 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 advisor from office 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, not all sides understand the need for 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 check to ensure nobody can secretly help themselves to a large amount of corporate money fraudulently. Their auditors are required to verify internal check exists. Internal check involves division of duties between different people. Never the twain shall meet.

Similarly, governments raise and spend vast amounts of money and need internal check and division of duties.

Examples:

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

President Herzog’s draft goes further. For example, suppose, hypothetically, a government wanted to pass a measure imposing 100% tax on left-handed people.

• If the measure were a basic law, it would require a majority of 80 in the Knesset’s fourth reading – unlikely.
• If the measure were a regular law the Supreme Court could declare it invalid on inequality grounds.
• If the measure were a full Cabinet decision, Knesset legislation would presumably still be needed.
• If the measure was of one Minister, say the Finance Minister, the Supreme Court could overturn it as arbitrary or capricious.

To conclude:

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

Next Steps:

Please contact us to discuss any of the above matters further, or any other matter.

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(c) Leon Harris 19.3.2023