On 15 March 2023, in a special speech, President Yitzhak Herzog presented a compromise proposal upon which negotiations on the government’s plan for a regime revolution would be based. Zulat congratulates the Honorable President for enlisting in the effort to block the government’s moves to fundamentally change the regime in the State of Israel and the sensitive balances between the three branches of power.
Zulat thanks the President for his efforts to bridge the deep gaps. Indeed, it seems he succeeded to reduce some of them in the plan he published. Here are some important points:
- The appointment of judges to lower courts will require the support of at least one Supreme Court judge, which means that judges will have veto rights.
- Basic Laws will be enacted in accordance with the founding principles of the Declaration of Independence.
- Basic Law: Human Dignity and Liberty will incorporate an explicit recognition of the rights to equality and to freedom of expression/opinion/protest/assembly.
- There will be constitutional judicial review of all the rights derived from the right to human dignity, particularly the right to equality.
- The opinion of government ministries’ legal counsels will be binding.
- Judicial review based on the reasonableness standard will be applied to unreasonable political decisions by the government and ministers.The application of the reasonableness standard to other state institutions will not be reduced.
Key points in the plan that still fail to adequately address the danger to Israel’s democratic institutions:
- The number of political appointees in the Judicial Selection Committee will increase, and it will be possible to appoint new judges to the Supreme Court without the consent of sitting judges.
- As they will be shielded from judicial review, Basic Laws may be used to limit the protections of the rule of law and human and civil rights (rights recognized in certain Basic Laws would be weakened by the enactment of contradictory ones).
- Judicial review will only be possible insofar as they contradict Basic Laws and will require an unusual majority of Supreme Court judges.The government will be able to re-legislate an ordinary law that has been invalidated as a Basic Law or to amend an existing Basic Law to eliminate the contradiction between it and an ordinary law and thus legitimize it.
- The government and the ministers will be free to choose to represent themselves in judicial proceedings, as well as to seek the dismissal of legal counsels in a special committee to be established to this effect.
- Judicial review based on the reasonableness standard will not apply to the appointment of ministers.
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