Israeli judicial reform talks progressing despite few results
INSIDE POLITICS: The judicial reform talks may not have much to show for them, but the fact that the sides are still meeting is significant.
By TAL SHALEV
The Jerusalem Post | 21.04.2023
Tourists and guests staying at the Waldorf Astoria Jerusalem hotel this week might have witnessed a potentially defining moment in Israel’s history. In the midst of the gravest social and political crisis the country has known in years, representatives from the coalition and opposition met for talks deemed crucial for the future of the nation.
Next week’s Independence Day ceremonies and celebrations compelled the negotiations initiated by President Isaac Herzog to move from his official residence to the much more opulent Jerusalem location, in tandem with the progression of the negotiations on judicial reform from procedure to substance.
Over the course of two days, teams representing Prime Minister Benjamin Netanyahu, opposition leader Yair Lapid and Benny Gantz resided at the Waldorf, engaging in serious talks about the most divisive issues of the day, a rare political event in and of itself.
Netanyahu dispatched his No. 1 envoy, Strategic Affairs Minister and former ambassador Ron Dermer, while former justice minister Gideon Sa’ar is the lead representative of the opposition. Gantz’s closest confidant, Chili Tropper, and Lapid’s former director-general, Naama Shultz, are also active participants in the talks, while the Kohelet Policy Forum’s Dr. Aviad Bakshi, one of the architects of the government judicial overhaul, is thought to represent Justice Minister Yariv Levin, the main proponent of the government’s proposals.
The progress of the Israeli judicial reform talks
SO FAR, the Waldorf Astoria summit hasn’t produced any significant constitutional moments or historical breakthroughs, but given the conflicting ideologies and rival interests inside the room – and the heated internal debate outside of it – the fact that the talks haven’t blown up, at least not yet, is itself a modest achievement.
Herzog, the initiator and sponsor of the constitutional summit, was busy preparing for his ceremonial duties in the national holidays and only dropped by for a 10-minute pep talk to preach about the need for national unity. Respecting the presidential spirit, both parties appear to be open for meaningful discussions, and the atmosphere has reportedly been respectfully positive and constructive. Yet they haven’t produced any essential agreement on any of the burning topics topping their agenda.
On the first day, the coalition offered new proposals on the critical issue of the makeup of the Judicial Selection Committee, which appoints all judges, but none of them passed the opposition’s barrier, led by Sa’ar, whose opening stance is that there is no need for any changes whatsoever.
In their second meeting, the sides discussed proposals for a constitutional Basic Law that would delineate the relationship between the Knesset and the Supreme Court. They agreed on the need to define the constitutional difference between regular and basic laws by entrenching Basic Laws in a special legislative process entailing four separate Knesset votes rather than three, but had loud and profound disagreements on the specifics, as well as on the criteria for judicial review of Knesset legislation.
Talks will resume on Sunday and proceed to other elements and aspects, but as long as the wide ideological gaps on these two core issues persist, the constitutional mediation is almost certain to fail.
The talks are already living on borrowed time. When the Knesset session resumes on May 1, the polite atmosphere at the Waldorf Astoria could easily be disrupted. Internal pressures in the Likud to resume the judicial blitz are mounting, prompted by extreme right-wing Otzma Yehudit leader Itamar Ben-Gvir, who is galvanizing supporters to demand “reform now.” Several Likud MKs and right-wing groups are planning a mass protest outside the Knesset on Thursday, after Independence Day. They are trying to convince Netanyahu himself to headline the event with a public commitment to renew legislation if negotiations fail.
At the same time, the opposition, inspired and prodded by hundreds of thousands of anti-reform protesters who continue to gather each week, is demanding that the government completely withdraw the original Levin-Rothman legislation, which was put on hold before the Passover recess, wary that the coalition could unilaterally put it back for a final vote with a moment’s notice.
Other controversial bills initiated by individual members of Knesset could reemerge at any moment and blow up the talks.
The anti-government protesters, meanwhile, have shifted some of their focus to the eternally burning issue of “equality of burden” – i.e., service in the army – in protest against a haredi draft law on the government’s table. Yesh Atid officials are demanding to debate the topic at the presidential talks, but the ultra-Orthodox parties in the coalition are hardly inclined to comply.
NEVERTHELESS, THE presidential mediators ended the first week with cautious optimism, a rarity in Israeli politics these days.
“It’s probably one of the rooms that has the most eyes looking on in Israeli history, and despite preliminary expectations that the parties would toughen their positions to cater to their electoral bases, most of the participants came with constructive proposals and positions,” says Yaniv Cohen, from Tachlith – The Institute for Israeli Policy, which is assisting former cabinet secretary Oved Yehezkel, who was designated by Herzog to manage the negotiations.
Cohen told me this week that “after spending many hours together and sharing lunches against the backdrop of the national days of remembrance and independence, I’m a tad optimistic about the efforts in the room.”
Acknowledging the challenge of keeping up good faith in talks during a heated and contested Knesset session, Cohen said that “it depends on the parties, but mainly on the coalition, which needs to keep flames low and refrain from promoting bills that could provoke deep controversy.”
But the ultimate fate of the presidential talks depends, more than anything else, on the answer to a perennial puzzle of Israeli politics:
What does Netanyahu really want?
In the past month or so, ever since he announced a freeze on the judicial overhaul legislation, Netanyahu has diverted most of his focus and attention to security and economy matters, backtracking on his decision to fire Defense Minister Yoav Gallant and repeatedly voicing his commitment to finding a national compromise on consensual constitutional changes.
At the same time, however, senior coalition figures, like the Likud’s Dudi Amsalem and Miri Regev, are vowing to resume the judicial blitz at full speed if the presidential talks fail, strengthening suspicions in the opposition and the protest movement that Netanyahu’s freeze was only tactical.
Still, the first and most urgent task on Netanyahu’s agenda when the Knesset session resumes is to pass the budget and to meet the deadline at the end of May.
If Netanyahu is keen on backtracking from the judicial overhaul – without actually declaring its burial and angering his electoral base – the presidential summit could serve as the perfect excuse for a further delay and can buy him time to postpone the dramatic decision.
His main challenge will be to control his political allies and convince them to follow suit without blowing up the so-called constitutional moment.
Yaniv Cohen is the head of the Tachlith Institute.
יניב כהן הוא ראש מכון תכלית למדיניות ישראלית.