President Herzog (left) with Justice Minister Levin (right)
President Herzog (left) with Justice Minister Levin (right)צילום: יונתן זינדל, פלאש 90

A draft of the judicial reform compromise deal being prepared for President Isaac Herzog was published by Israel Hayom and Yedioth Ahronoth Tuesday morning, drawing criticism from the architects of the Netanyahu government’s plan to overhaul Israel’s court system.

President Herzog expressed optimism Monday regarding the prospects of a compromise deal between the Israeli government and the Opposition on judicial reform, telling some 100 mayors from across the country that Israel faces serious consequences if an agreement cannot be reached.

According to Tuesday’s reports, Herzog has commissioned two teams of legal experts to draft a potential replacement to the government’s contentious judicial reform plan, with one of the teams – led by Bar-Ilan University law professor Yedidia Stern – having nearly completed its set of recommendations for an alternative judicial overhaul package.

The Stern-led team’s plan would drop the Override Clause, a proposed mechanism for allowing a majority of the Knesset to overrule Supreme Court decisions striking down laws.

The Supreme Court has struck down twenty laws, beginning in 1997, since the so-called Judicial Revolution, in which the court declared Israel’s Basic Laws the country’s de facto constitution and granted itself the right to judicial review.

Under the draft drawn up by the Stern team, special provisions would be made to shield specific laws targeted by the Supreme Court in the past, including amendments to the draft law which enshrine draft deferments for yeshiva students.

The team is also considering a watered-down version of the Override Clause, with a number of possible mechanisms to limit its use, including a cap on the number of times the clause can be invoked in a single Knesset.

Aside from the Override Clause, the Stern-led team is considering whether to drop the government’s plan to strip the judiciary’s right to overrule government decisions based on the Reasonableness Standard, or to simply limit reform of the standard’s use by the Israeli courts.

The compromise plan detailed in Tuesday’s reports would include the government’s proposal to raise the threshold for striking down Knesset laws – requiring a supermajority of justices – and would bar the Supreme Court from striking down Basic Laws.

On the other hand, the draft in question would make it more difficult for the Knesset to amend Israel’s Basic Laws, and no changes would be made to the appointment of legal advisers to government ministries. The government’s plan would grant ministries independence in appointing their legal representatives, whose opinions would not be legally binding and who can be hired and fired at a minister’s discretion.

President Herzog is expected to adopt the plan put forth by Stern’s team and formally propose it as a replacement to the government’s judicial reform package in the near future, the Israel Hayom report claimed.

Following the publication of the reports, however, the president’s office distanced him from the draft in question.

“This morning’s publications were not done by the president or with his knowledge,” Herzog’s office said. “It should be clarified and emphasized that this is not the president’s plan. It is one proposal out of many that have been made by researchers and academics from various organizations. The president has not yet finalized his plan, and after he does put it together, he will present it to the citizens of Israel.”

The architects of the government’s own judicial reform plan, Justice Minister Yariv Levin (Likud) and Constitution, Law and Justice Committee chairman Simcha Rothman (Religious Zionist Party) slammed the proposed alternative in a joint statement Tuesday morning.

“We are happy to hear the president clarify that the alleged ‘plan of the president’ is not from him and was not published with his knowledge.”

“As is clear to anyone who reads it, this ‘plan’ totally destroys judicial reform. The president said in his speech that he will make every effort to bring the two sides together to an agreement. We praised him for this and we still praise the president’s efforts, and we have dedicated many hours and days for dialogue with anyone who has shown a willingness to engage in serious discussion.”

“There is a broad consensus in the public, in academia, in hi-tech, in the economy, and among Knesset Members regarding the need for sweeping reform, and on the basic principles of this [reform].”

“After many days of talks, we can say that there are broad agreements that are within reach, including those that would not destroy the reform’s basic goals and that would enjoy broad support. We will continue to move ahead with the legislation as planned, and we will also continue efforts to reach a broad agreement, as we have done in recent months.”