As tensions simmer over the new government’s plan to radically overhaul the judiciary, former justice minister Daniel Friedmann laid out a compromise proposal Monday that would soften the plan, increase the power of the president, and make it harder for ruling coalitions to change the quasi-constitutional Basic Laws.
Friedmann, who served between 2007 and 2009 under then-prime minister Ehud Olmert, is himself a veteran proponent of judicial reform who sought to curb the powers of the High Court of Justice and the attorney general, believing they had acquired excessive authority to intervene in the government’s decision-making.
Friedmann’s positions made him an enemy of many in the justice system at the time, but he is a moderate compared to current Justice Minister Yariv Levin, and he argues that Levin’s plan — now supported by Prime Minister Benjamin Netanyahu’s entire hardline right-religious coalition — goes too far.
Levin’s reform plan would severely restrict the High Court’s capacity to strike down laws and government decisions, with an “override clause” enabling the Knesset to re-legislate struck-down laws with a bare majority of 61; give the government complete control over the selection of judges; prevent the court from using a test of “reasonableness” to judge legislation and government decisions; and allow ministers to appoint their own legal advisers, instead of getting counsel from advisers operating under the aegis of the Justice Ministry.
Speaking with the Yedioth Ahronoth daily, Friedmann detailed his compromise plan, backing certain elements of Levin’s proposal but opposing or softening others.
“There is a need for reform in the justice system,” he said. “But the proposed reforms are [only] partially acceptable to me. There needs to be less belligerence and more self-restraint by the Knesset too.”
Likud party head Benjamin Netanyahu (L) and faction chair Yariv Levin (R) lead their party’s faction meeting at the Knesset, May 23, 2022. (Yonatan Sindel/Flash90)
He criticized the frequent changes made to Basic Laws in recent years “based on evanescent interests of nascent governments,” including creating the post of alternate prime minister, increasing the number of ministers allowed to resign their Knesset posts as part of the so-called Norwegian Law, altering the number or percent of lawmakers allowed to defect from a party without sanctions, and changing the structure of government ministries, “which are treated like plasticine and are taken apart and stitched together.”
“We need to think about restraint and reform in the Knesset and in the way it makes decisions, not just reform in the justice system,” he said.
In his compromise offer, Friedmann proposed canceling the reasonableness clause only in matters related to the management of the country and to political and government appointments. Courts would retain the ability to use the clause to nullify decisions that violate civil and human rights.
Regarding the selection of judges, Friedmann proposed separating the mechanism for selecting magistrates and district court judges from the mechanism for selecting Supreme Court justices. The former, he said, doesn’t require significant change and could even be altered to exclude government involvement altogether.
But he opposed Levin’s stance on picking justices in the top court, saying the coalition shouldn’t be given total control. He proposed accepting Levin’s plan to broaden the panel with public representatives, but said these should be picked by the president rather than by the justice minister.
Supreme Court justices arrive for a hearing over the legality of Shas leader Aryeh Deri’s appointment as a minister, at the Supreme Court in Jerusalem on January 5, 2023. (Yonatan Sindel/Flash90)
Friedmann supported Levin’s push to change the seniority system currently in use for selecting the Supreme Court’s chief justice. He said the chief justice should be picked by merit — for example, by a panel appointed by the president, or by another independent body — and not purely based on time served in the top court, arguing that nowhere else in the country are appointments handled in this way.
He dismissed the claim that canceling the seniority system would create excessive competition between the justices, saying he trusts them not to create political lobbies or to alter judicial decisions due to considerations of how it affects their chances of being appointed chief justice.
Regarding the court’s power to strike down laws, Friedmann proposed prohibiting it from intervening in Basic Laws — but only if the Knesset’s ability to change them in accordance with short-term interests is limited as well.
“I propose giving the president the power to postpone the entry into force of Basic Laws for a period of a year or two,” he said. “During that time, consideration can be made as to whether to give the Knesset the mandate to pass it into law.”
President Isaac Herzog attends a Knesset plenum session on forming Israel’s 37th government, in Jerusalem, December 29, 2022. (Yonatan Sindel/Flash90)
Regarding the so-called override clause, Friedmann accepted Levin’s proposal that as few as 61 lawmakers in the 120-member Knesset be able to strike down High Court rulings, but added a caveat: that the number of MKs supporting such a motion must exceed the number of opponents by at least five.
One part of Levin’s proposal was rejected outright by Friedmann.
“I oppose legal advisers [of ministries] being political appointees,” he said. “The system of appointing professionals to [such] roles should continue.”
