In the coming day or so, the government is expected to pass a complete restructuring of the judiciary and of the balance of the separation of powers between the various branches.
Unlike the restructuring proposed by Justice Minister Yariv Levin in early 2023, this reform has involved some serious compromises by the government in favor of the opposition.
However, The Jerusalem Post has learned that a critical piece to the compromise that was originally presented to the public on January 9 by Foreign Minister Gideon Sa’ar and Levin is missing.
Sa’ar’s backing was critical to the expected passing of the law, not just in terms of additional votes in the Knesset but in terms of moral support.
Unlike Levin, who is viewed as a hero of the political Right and a lightning rod of suspicion for the Center and the Left, Sa’ar still retains respect among many in the political Center.
The January 9 compromise was highly complex but very watered down. It had three essential elements: 1) vastly increasing both the government and the opposition’s power over judicial appointments; 2) vastly decreasing the judiciary and legal establishment’s influence over those appointments; and 3) permanently limiting the power of the executive and legislative branches to arbitrarily pass quasi-constitutional basic laws for narrow, short-term, personal, and overtly political goals.
Radical changes
The first two elements are still present in the bill, and they will soon radically change the country. The third critical element was dropped.
How and why did this happen, and what does it mean about the impact of the new law on the country?
The Post has learned that Sa’ar cut the January 9 compromise with the hope of passing the entire package as one unit to properly balance the new powers given to the executive, legislative, and opposition power centers while limiting how extreme their future maneuvers could be.
In a very real sense, this would have been the first step toward a permanent constitution supported not only by the Center-Left but also by the political Right.
Eventually, as the Post understood it, Sa’ar found that it was impossible to convince the coalition to pass the regulation regarding the placement of limitations on passing future basic laws.
Why, then, does he still support the compromise?
The Post has learned that this is due to his view that the balance between the government and the opposition was itself a major achievement in moving Levin and the coalition off of their initial goals of giving the ruling coalition decisive and almost unbalanced control over judicial appointments.
Put differently, though there are positive aspects regarding keeping the judiciary apolitical and more professional to maintain the judiciary’s influence over the appointment process, this simply was not in the cards. The coalition no longer regarded judicial influence in the process as being apolitical.
FROM SA’AR’S perspective, the choices were either risking that the coalition might manage to pass its more extreme power grab regarding controlling judicial appointments or chancing that the country might remain in ongoing, perpetual conflict over these issues.
Remaining questions
There are already two High Court of Justice seats that have been unfilled for years.
Sa’ar would point out that the key to a compromise was to make sure that some party would be able to counterbalance the government’s influence over judicial appointments. Though this has been the judiciary setup until now, Sa’ar believed this could also be done by the opposition.
There are still critical questions about whether some loopholes in the bill will be exploited by the government to manipulate the opposition seats on the new judicial panel, such as making unofficial deals with such “opposition figures” to vote for the coalition’s candidates in exchange for funding or future appointments.
But if the government truly leaves the opposition seats to the opposition, there will be a substantive counterbalancing of the government’s influence over the judicial appointments process.
Also, Sa’ar would say that limiting the future of politicized basic laws, while part of the January 9 deal with Levin, was never as deeply agreed to as the judicial selection question.
His view is that the January 9 publicized compromise went into great detail regarding the judicial appointments issue but was only a general set of principles regarding the basic laws, a mini new constitution issue.
Why, then, did he publish both the judicial selection and basic laws compromise together if they were not interdependent?
He had hoped that the two would go through together and believed that there was some value in putting out the fundamental principles for a basic law compromise, even if it did not pass.
Alternatively, Sa’ar entered the coalition in a powerful position politically. After months within the coalition, his power had shrunk, and he decided to remain the foreign minister and support the government despite losing a key piece of the compromise he thought he had secured with Levin.
Without regard to Sa’ar, dropping the basic laws aspect of the compromise is a mega event.
As long as that piece was part of the deal, one could argue that the judicial influence over its own appointments was less necessary because the political class was committing to limiting its own most extreme moves.
In other words, countries like the US give strong control of judicial appointments to the political class, but they also have constitutions to prevent the political class from anti-democratic power grabs.
Without any element that gives the High Court some ability to remain an independent judiciary and without strengthening Israel’s constitutional trends, the current compromise takes unprecedented risks with Israel’s balance of power, which is an anomaly among consolidated and mature democracies worldwide.