The Forum welcomes the President's call last night to halt the attempt at legislating fundamental changes to Israel’s regime by a bare coalition majority, and his recognition that such a fundamental change may only be achieved by a broad consensus. Unfortunately the President’s call to halt the legislative proceedings has so far gone unheeded, as this morning the Knesset Constitution and Law Committee approved draft legislation aimed at implementing the regime changes for a first reading in the Knesset.
We welcome the President's acknowledgment that when taken together the components of the proposed reform raise concern that the democratic foundations of Israel will be harmed, and his emphasis that the independence and professionalism of the judiciary must be maintained. The President's statement that a necessary condition for any change is the legislation of a Basic Law: Legislation is also commendable. We are mindful that the President's proposal did not go into details, and he only presented general principles. Nevertheless, we consider it essential to point out that in several critical respects his proposal is lacking.
First, the President’s proposal does not address the minimal necessary conditions required in a democratic regime to protect individual human rights. We believe that alongside a Basic Law: Legislation that will establish the procedure for enacting basic laws, it is essential to enact a basic law that guarantees the human rights of all.
Second, according to the President's proposal, basic laws will be immune from judicial review if enacted according to a specific procedure, to be determined by consensus. The problem is that in the absence of a basic law that guarantees the protection of human rights, it would be possible to enact a basic law that violates human rights. As this basic law would not be subject to judicial review it is unacceptable that all basic laws should be immune from judicial review.
Third, the President proposes to establish in the Basic Law: Legislation a mechanism for overriding a court's ruling that invalidates a law "through a majority and process to be established via dialogue and agreement." Over and beyond the principled difficulty with an override clause, the proposal does not limit the rights that may be overridden. It must be emphasized that there are basic rights that may not be overridden in a democratic regime even by a majority decision; similarly, there are "rules of the game," first and foremost amongst which are free, fair and periodic elections, that cannot be overruled.
Fourth, the President's proposal for the composition of the Judicial Selection Committee does not relieve the concern raised by the coalition's proposals. In particular, the proposal for "equal representation of the three branches" could, in practice, leave the de-facto control over appointments in the hands of the coalition, since some of the Knesset representatives will be members of the coalition who support the government representatives. A fundamental principle for the composition of the Judicial Selection Committee must be that the coalition does not have an absolute majority, or, alternatively, that a special majority will be required for judicial appointments so that the coalition alone will not have control over the appointments.
Fifth, the President proposes that the details of all the changes be approved by a broad consensus but does not outline procedural principles for such consensus in a manner that protects the representation of minorities. It is imperative at this moment in time to provide a balanced, thorough, and practical process so that any change resulting from this process will apply only from the next Knesset.
In conclusion: as a starting point the President’s proposal accepts many of the dangerous assumptions underlying the current coalition proposal. We are of the opinion that these assumptions must be addressed and resolved in any dialogue.
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