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Report: Overhaul deal PM discussed with Herzog would have made it harder to oust AG

A proposed compromise agreement between Prime Minister Benjamin Netanyahu and President Isaac Herzog aimed at ending the crisis surrounding the government’s overhaul reportedly includes a clause that would effectively bar the government from firing the attorney general, and a provision that judicial reform would require an 80-MK majority for at least 15 months.

On Friday, the Haaretz daily said it had obtained a copy of the document outlining the full compromise, laying out the details regarding the various elements reportedly agreed to by Netanyahu and Herzog’s confidants.

Rather than rely on verbal or written commitments from Netanyahu, whose rivals have long claimed that he cannot be trusted, the clauses of the compromise would be enshrined into various pieces of legislation to be passed by the Knesset.

This would include an amendment to an existing Basic Law stating that any change to the powers of the attorney general and state prosecutor would require the support of at least 80 MKs in all of the three Knesset votes required to pass the legislation into law.

The current coalition only has 64 MKs, and the opposition has spoken out against attempts to curb Attorney General Gali Baharav-Miara’s power. However, even without this legislation, such a decision would likely come under major judicial scrutiny.

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The 80-MK requirement — an apparent super majority — would also be needed for any judicial reform legislation and would remain in effect for at least 15 months.

President Isaac Herzog (R) and Prime Minister Benjamin Netanyahu (C) attend a Jerusalem Day holiday ceremony at the capital’s Ammunition Hill, May 18, 2023. (Arie Leib Abrams/Flash90)

The document obtained by Haaretz leaves the exact number of months blank. The report said Netanyahu originally agreed to 18 months before later insisting on just 15 months. An agreement had not yet been reached by the time the existence of the talks was leaked earlier this week.

Insisting that their authority trumps that of Baharav-Miara since they were elected — not appointed — to public office, members of the government have repeatedly sparred with the attorney general, who has pushed back against efforts to curb the judiciary’s power and serve as a check on illicit ministerial decisions.

She has refused to represent the government in several key cases before the High Court of Justice, which has been called to rule on the legality of legislation passed by the most hardline right-wing coalition in Israel’s history. Her conduct has led to growing calls for her ouster by some of the ruling bloc’s most radical elements, though Netanyahu has insisted that firing Baharav-Miara is not in the cards.

The existence of overhaul compromise negotiations between representatives from Netanyahu and Herzog’s offices was leaked earlier this week, and the premier’s Likud party subsequently denied having reached any agreements on the matter.

However, Channel 12 news reported Friday that the document had been signed by Netanyahu’s lawyer, Michael Rabilo.

Attorney Michael Rabilo arrives for a meeting at the Prime Minister’s Office in Jerusalem on April 13, 2021. (Yonatan Sindel/ Flash90/ File)

Herzog has yet to publicize the contents of the compromise, but the main details were widely reported earlier this week.

They include a softening of legislation passed by the coalition in July that eliminated the reasonableness standard for cabinet and ministerial decisions; an 18-month freeze on additional judicial reform legislation; and maintaining the overall makeup of the Judicial Selection Committee, which chooses judges.

As for the recently-passed law that bars the judiciary from using the reasonableness standard to adjudicate cabinet and ministerial decisions, the document obtained by Haaretz states that the tool will be restored for most decisions made by individual ministers, including ones to fire a government appointee or gatekeeper.

It was unclear why the termination of the attorney general would require the specific protection of the support of 80 MKs, if the potential decision could be challenged in court under the reasonableness standard.

Decisions made by the entire cabinet or appointments made by individual ministers, on the other hand, would remain immune from legal adjudication using the reasonableness standard as was established in the first piece of overhaul legislation passed in July, so long as they are not “arbitrary and capricious.”

However, if the appointments were to be challenged, the case would be heard by a panel of seven Supreme Court justices, chosen randomly by a computer program rather than the court’s chief, the report said.

The Haaretz-obtained compromise proposal also allows the prime minister to appoint someone under criminal investigation to a cabinet position. However, this would not be enough to allow Shas chairman Aryeh Deri to return to the government due to the nature of the plea deal he signed for tax fraud, the report said.

Prime Minister Benjamin Netanyahu with then-Minister of the Interior and Health Aryeh Deri (left) and Justice Minister Yariv Levin (right) during the swearing in ceremony of the new government, at the Knesset, on December 29, 2022. (Yonatan Sindel/Flash90)

Regarding the Judicial Selection Committee, the compromise states that its makeup will remain largely the same: two government ministers, two members of Knesset, three Supreme Court justices, and two representatives of the Israel Bar Association.

However, a new amendment would be legislated requiring the support of seven of the nine members in order for a judge to be appointed.

This would ostensibly give the coalition a veto over all judicial appointments without giving the ruling bloc outright control over the panel.

In addition, the new amendment would enshrine in law the stipulation that a member of the opposition filled one of the Knesset representatives’ spots on the panel — currently just a tradition.

Another clause of the compromise proposal states that the Knesset would pass an amendment making it difficult for the justice minister to prevent the Judicial Selection Committee from convening, as has been the case with Yariv Levin, who has barred the panel from meeting until the coalition passes legislation ensuring its control over it.

According to the compromise, the amendment would state that members elected to the committee would continue in their role until the Knesset votes new representatives in. Members would remain on the panel, even in the case where parliamentary elections are called and the respective MK is voted out of office.

This step would ostensibly render a decision by Levin to bar the convening of the panel ineffective, since no amount of delay in the process would hasten the replacement of members he doesn’t like.

Haaretz cited senior sources in Herzog’s office who said Thursday that Netanyahu is still committed to the compromise proposal that the daily obtained, even though he has publicly disavowed the initiative since it was publicized. However, the sources speculated that the premier is more likely to embrace the plan after the High Court rules on the reasonableness law. Hearings on that legislation will begin Tuesday.