Israeli Supreme Court
The Israeli President’s Plan to End the Constitutional Crisis
The current political crisis in Israel started on Jan. 4, when Minister of Justice Yariv Levin presented the government’s radical plans to overhaul Israel’s judicial system. (We have discussed notable aspects of the proposal in a series for Lawfare, available here, here, here, here, here, and here.) Just as the crisis completed its 10th week, Israeli President Yitzhak Herzog presented a detailed plan for judicial reform intended to facilitate a political agreement to end the crisis. Herzog warned of the growing rifts in Israeli society, which might escalate to violence or even a civil war. Still, it took government representatives only minutes to reject the president’s proposals as unacceptable since they largely perpetuate the status quo. The opposition parties and some of the leaders of the mass protests that have been rocking Israel for the last 12 weeks, however, indicated their willingness to endorse the plan, at least as a starting point for political negotiations, notwithstanding their reservations with some aspects of the plan.
Herzog is calling his plan the “People’s Directive.” It represents a detailed counterproposal to the government’s plan to recalibrate relations between Israel’s different branches of government, and Herzog produced it after weeks of extensive and broad consultations with experts, politicians, and other stakeholders. The proposal appears to enjoy considerable support among the Israeli public (initial polling shows that over 40 percent of Israelis support the plan, while only about a third of the public oppose it), and it was endorsed by several leading Israeli legal experts as an acceptable (albeit imperfect) plan, which has the potential for resolving the political crisis. (Many of the legal experts who endorsed the plan were consulted by Herzog during its formulation, including us, the authors.) While staunch liberals and staunch conservatives have rejected the president’s plan so far, it is likely that, given the extent of expert and political support it enjoys, any future agreement or legislation involving judicial reform would use the president’s plan as a key reference point.
The president of the state of Israel holds a largely ceremonial function, with almost no formal political power. This has largely allowed presidents to stay outside the political fray and for the institution of the presidency to remain one of the last public institutions in Israel (along with the armed forces) that enjoys broad public support in an increasingly polarized political environment. At times, presidents have used their informal authority as the nominal heads of state to intervene in times of crisis and to reduce tensions. The current president—who is the son of a former president (Haim Herzog) and the grandson of Israel’s first chief rabbi—is generally viewed as a figure who enjoys broad public support. Although he previously served as the chair of the Labor Party, and as Benjamin Netanyahu’s political opponent, he enjoys political support across the aisle. In fact, in 2021, he was elected by the Knesset to serve a seven-year term as Israel’s president with an unprecedented majority of 87 members voting in favor (out of 120 members).
Throughout the current crisis, Herzog vowed several times to use his unique pulpit in order to resolve what he termed a “deep and serious crisis.” By Feb. 12, he had already presented a five-point agenda for judicial reform, which was designed to serve as a framework for political negotiations across the aisle in lieu of the government’s platform, which he considered dangerous to Israeli democracy. (The agenda included the passage of a new basic law to govern future legislation, an increase in the number of lower court judges, the reduction of backlogs in the legal system, a moderate reform of the judicial appointment process, and limitation of the court’s ability to review the reasonableness of certain executive decisions.)
Although the speech was received favorably by some senior politicians from both the coalition and the opposition, the government refused to halt the process of legislating its own reform plan. Herzog proceeded to work with teams of experts on a detailed plan that could, he hoped, substitute for the government’s planned reforms. The process of formulating the new plan—which attracted some criticism for its lack of transparency—involved extensive consultations with national and municipal politicians, academics, civil society groups, and business leaders.
Herzog presented the plan in an impassioned speech on March 15, in which he warned sternly against the continuation of the political crisis. He said in the speech that the political crisis could throw Israel into an abyss, or even into a civil war. His plan represents, so he claimed, a middle ground that could transform the situation into a formative constitutional moment.
The plan includes nine segments:
1. Principles—The plan offers a platform that could obtain broad political agreement upon which new legislation can be based and passed in the Knesset. Still, the plan features a delicate equilibrium between different elements and must be advanced as one whole legislative package. No new basic laws or amendments to existing ones are to be promoted during the period of time in which the plan is legislated.
2. Passage of new basic laws—Basic laws, which serve as Israel’s rump constitution, can be passed or amended like regular statutes. To pass, they require any majority and three readings in the Knesset. (Some basic laws require, however, a majority of 61 out of the 120 members of the Knesset in order to be passed, and the term of the Knesset can be extended only with support of 80 members.) The lack of effective protection from change has led to the frequent amendment of basic laws and has facilitated the current crisis, in which a new government seeks to change, with a simple majority in the Knesset, the constitutional makeup of the country.
The plan seeks to change this. It underscores the constitutional status of basic laws—including their superiority over ordinary legislation—and their linkage to Israel’s Declaration of Independence and to its core values as a Jewish and democratic state. It also proposes that future basic laws would be passed through a special legislative process involving four readings in the Knesset; a time gap between the third and fourth readings of at least three months (no time gaps are needed for ordinary legislation); and support by a supermajority (61 out of 120 members of the Knesset for the first three readings and support from 80 for a fourth reading in the same Knesset or 70 in the following Knesset, if elections were held between the third and fourth readings). The plan also proposes that any future amendment of existing basic laws follow the same new procedure, with the exception of provisions in existing basic law guaranteeing fair and free elections, whose amendment will be even more difficult (requiring the support of 80 members of the Knesset in each of the four readings).
3. Judicial review over legislation—Any court in Israel may currently exercise judicial review over the constitutionality of legislation, although in practice this rarely occurs and statutes are reviewed mostly by the Supreme Court. At the Supreme Court, any panel of justices, including a regular panel of three justices, may strike down legislation by any majority (in practice, however, legislation is almost always reviewed by expanded panels). In addition, several justices on the court have expressed the view that basic laws that run contrary to Israel’s core values, or that use in an abusive manner the title “basic law” to pass what is effectively ordinary legislation, could be struck down.
According to the plan, the Supreme Court would be the only court in Israel with the authority to review the constitutionality of Knesset legislation, under demanding conditions: at least 11 out of the 15 justices must participate in the hearing and a decision to strike down legislation must be supported by at least two-thirds of the justices sitting in the case. In addition, the plan provides that legislation that a majority of less than two-thirds of the justices of the court that sat on the case deem unconstitutional would be sent back to the Knesset with a declaration of incompatibility (roughly following the United Kingdom’s model of Section 4 of the Human Rights Act). Regarding new basic laws, the plan stipulates that the court would exercise review only over the procedure of their passage—not over their contents. Finally, this part of the plan provides that the general contour of a new arrangement dealing with the thorny issue of drafting ultra-Orthodox young men to military or civil service would be introduced into one of the basic laws, rendering the matter largely nonreviewable by the Supreme Court (past court decisions to strike down exemption laws as unconstitutional have fueled Israel’s current political crisis).
4. Judicial selection—The plan seeks to substitute the existing judicial selection committee, currently composed of four politicians (three from the coalition and one from the opposition) and five legal professionals (three Supreme Court justices and two representatives of the bar), with a new selection committee composed of six politicians (four from the coalition and two from the opposition) and five legal professionals (three Supreme Court justices and two representatives of the general public appointed jointly by the minister of justice and the president of the Supreme Court). The supermajority requirement for electing Supreme Court justices would be effectively lowered from seven out of nine to seven out of 11. In practical terms, the proposal eliminates the reciprocal power of veto over Supreme Court appointments currently exercised by the coalition and the Supreme Court, and facilitates selection through agreements reached across three of the four represented constituencies (coalition, opposition, justice, public).
Other important elements of the proposals pertaining to judicial selection are (a) the entrenchment in basic law of the practice, which up until now was informal, of selecting the most veteran justice on the Supreme Court as the president of the court; (b) the introduction of a supermajority of seven members of the selection committee out of 11 for lower court appointments, which must include a Supreme Court justice (currently, five out of nine members of the committee may select lower court judges and there is no requirement that a Supreme Court justice would support the appointment); (c) a provision that serving justices can be dismissed only by a high supermajority of nine out of 11 members of the selection committee, including the president of the Supreme Court (the law currently allows dismissal by the committee in a seven out of nine decision); and (d) a requirement that the selection committee be required to increase judicial diversity with respect to representation of both different social groups in Israel and different judicial philosophies.
5. Basic rights—The plan envisions adding to Basic Law: Human Dignity and Liberty explicit protection for the right to equality, freedom of expression and opinion, and the right to assembly and protest. (These rights are currently inferred from the existing basic laws but are not explicitly included in any basic law.) In addition, the plan stipulates that the jurisprudence of the court on the interpretation of “human dignity” for the purposes of constitutional review would remain legally binding. Finally, it envisions the launching of a process for finalizing Israel’s bill of rights under the auspices of the president.
6. Reasonableness—The plan proposes to limit the application of the administrative law doctrine of patent unreasonableness, which allows the court to strike down certain executive decisions. The plan exempts from the doctrine policy decisions of the government, decided in the plenary cabinet, as well as decisions to appoint individuals as ministers. It also limits the review of the reasonableness of policy decisions taken by government ministers to decisions that are arbitrary or capricious. The patently unreasonable doctrine continues to apply to other government decisions, and other administrative law standards continue to apply vis-a-vis all government decisions.
7. Government legal advisers—The plan proposes to maintain the independence of professional legal advisers, as well as to maintain their power to generate binding legal opinions. There are three aspects in relation to which the plan suggests some flexibility for the government in this matter: (a) It may reject legal advice pertaining to the contents of new legislation; (b) it may insist on private legal representation before courts if it disagrees with the legal position put forward by the legal advisers; and (c) it may initiate proceedings within the civil service apparatus for firing legal advisers in cases of persistent disagreement that prevents effective cooperation.
8. Reducing backlogs—The plan calls for adding hundreds of positions to lower instances of the judicial system in order to deal with the serious backlog of cases, and for the development of a multiyear plan by the court administration to improve service for the public and reduce workload.
9. Transition—The plan provides for a halt on all initiatives to change the relationship between the different branches of government and to weaken the status of the judicial branch and legal advisers during the current Knesset. It also envisions an eight-year period during which provisions found in some existing basic laws (that do not protect human rights or core democratic functions or the national identity) can be abrogated by a majority of 61 members of Knesset. Other needed changes in the contents of basic laws would have to meet the requirements laid out in the president’s plan.
Significance and Prospects
The president’s plan offers Israel a new constitutional framework, which would bring it closer to having a full constitution. Its most important aspects are the hardening of basic laws—requiring a supermajority of 70 or 80 members of the Knesset to pass them—and a movement toward completing the bill of rights. These changes would strengthen the state’s democratic institutions and human rights protections. It also offers a “new deal” that recognizes the Supreme Court’s power to strike down legislation explicitly, which has been an issue of political contention for the past 30 years; rejects demands for a Knesset legislative override in return for a supermajority requirement on the bench (two-thirds from the judges hearing constitutional cases); and excludes substantive review by the court of the constitutionality of basic laws. Other aspects of the plan represent a delicate fine-tuning of existing law, with a view to addressing some concerns raised by the coalition about judicial overreach without undermining the rule of law, judicial independence, and separation of powers—reducing the scope of the patently unreasonable doctrine, allowing more flexibility in deviating from the legal positions of government legal advisers and in terminating their employment—and allowing politicians greater influence on judicial selection (while precluding their power to select the president of the court).
As indicated above, the coalition was quick to reject the president’s plan, since it perpetuates a status quo in which it does not have full control over judicial appointments and the “last word” on questions of constitutionality. Still, the plan might have already changed the dynamic of the public struggle around the judicial reform, putting the onus on the government to explain its refusal to adopt elements from the new plan. Furthermore, it cannot be ruled out that some members of the coalition will refuse to support the governmental legislation without a thorough discussion of the pros and cons of switching, at least partly, to the president’s plan. Indeed, two Likud members have already called for halting the legislative process and have indicated that they might not support the legislation in the Knesset without an internal debate about the details of the reform; one of them even boycotted preliminary voting on some of the reform bills in the Knesset. It has also been reported that ultra-Orthodox politicians—who have not yet publicly spoken against the president’s plan—may call to adopt it, at least in part, as a way to reduce the growing focus of the protest movement on state and religion issues. Furthermore, the government’s most recent proposal (issued after the president’s plan was published)—delaying by one month the passage of most of the reform package, while passing as soon as possible one reform bill that revises the judicial selection committee (in a manner that gives the coalition full control over the selection of half of the Supreme Court justices every term of Knesset)—may stem from the president’s intervention in the crisis. (For a discussion and criticism of the new government plan, see here.)
In any event, due to its popularity among experts and the general public, the president’s plan is likely to serve in the near future as an influential reference point for efforts to resolve Israel’s very serious political crisis. If the crisis evolves into a constitutional moment, the plan will be readily available for adoption and implementation.