Hopes in the EU that Israel’s president will find compromise solution to judicial reform

Hopes in the EU that Israel’s president will find compromise solution to judicial reform
High Representative Josep Borrell in the debate in the EP, 14 March 2023, credit. EP

The plenary debate on Tuesday evening in the European Parliament on the proposed judicial reform in Israel and its implications for EU-Israel relations and the Middle East peace process did not offer any surprises but disclosed some common ground between the MEPs and EU’s foreign policy chief.

As previously reported, High Representative Josep Borrell had been invited to the parliament to speak about his position. His spokesperson had ahead of the debate told The Brussels Times that the High Representative would not have much to say about the judicial reform and would focus on his concerns about the vicious circle of violence in the occupied territories.

In Borrell’s view, he cannot an enter an internal and still on-going debate in Israel on the judicial reform and he did stick to this in his speech with some deviations.  “I do not want to prejudge the outcome of this debate. I am not part of this debate,” he told the MEPs.

While welcoming the opportunity to address the Parliament he also mentioned that the Israeli foreign minister, with whom he had spoken in the morning, was not very happy about the debate. And he slipped that it was not he who had chosen the title of the debate (“The Deterioration of democracy in Israel”).

“We are a close observer because Israel is a key partner, and our shared values are based on a democratic and open society and the rule of law,” Borrell said. “We expect this to continue. And if we have concern, if you have concerns, you will not hesitate in expressing them and conveying them, as you do in any part of the world.”

The parliament is free to discuss everything they consider important, he said, defending the parliament.  He had told the Israeli foreign minister: “Look, it’s normal that the parliamentarians are concerned for the growing spiral of violence in Israel and the occupied Palestinian territory, and [there is] the need for all sides to de-escalate the situation.”

The only legal issue in the judicial overhaul that he mentioned was the discussion about a bill that could re-establish the death penalty and there he underlined as expected that the EU is opposed to it. Overall, his speech focused on the situation in the territories and the Middle East peace process which he wishes to revive.

He made an effort to show his impartiality in the Israeli-Palestinian conflict and concluded that certainly everybody in the Parliament agrees that the EU should do its utmost to contribute to a peaceful settlement of the conflict. “This, and nothing else, is what is moving us, and in particular me.”

In contrast, the judicial reform was raised by all MEPs in their brief (1 – 2 minutes) speeches. The majority considered it to be an issue of serious concern for the EU and its partnership with Israel based on common democratic values and principles. And, like Borrell, they also welcomed the initiative of the Israeli president as regards a compromise solution which could be agreed upon by consensus.

Borrell even went a step further in his concluding remarks. Rejecting calls for a suspension of the EU-Israel Association Agreement, which had been revived last year, he explained that the agreement was not with a specific government but with a country. “Today, there is a government, tomorrow there will be another as before there was another.”

Not all MEPs were satisfied with his speech. “Democracy is at stake in Israel but Borrell, in an attempt to please the Israeli foreign minister, chose to remind us that the debate had been initiated by the Parliament,” Swedish MEP Evin Incir (S&D) told The Brussels Times. She was one of the few MEPs who asked the High Representative what concrete EU action he had in mind.

Among pro-democracy activists in Brussels, who have been demonstrating against the proposed judicial reform, feelings were mixed. “We were humbled by the overwhelming support, expressed by democratically elected MEPs, who were identifying with our urgent struggle to protect our democracy from within,” commented Dan Sobovitz, one of the organisers of the demonstration in Brussels.

“Unfortunately, this support does not translate to concrete actions despite 10 weeks of mass demonstrations and protests in Israel and elsewhere. Preserving Israel’s democracy is a matter of common values but also a primary European interest, among others to ensure a steady flow of Israeli energy and  advanced technologies to the EU and to maintain stability in the region.”

Is a compromise in sight?

The new Israeli government claims that it wants to restore the public’s trust in the courts by “rebalancing” the branches of power and the systems of checks and balances. The proposed judicial overhaul consists of several parts. The most important ones are the following ones:

  • Changing the composition of the committee that selects Supreme Court judges, by adding more politicians and giving them the majority in the committee;
  • Abolishing the right of the Supreme Court to cancel “unreasonable” government decisions;
  • Requiring a qualified majority of 12 judges of 15 in the Supreme court to disqualify parliamentary legislation that is incompatible with basic laws or fundamental rights;
  • Introducing an “override clause” which would give Knesset (the Parliament) the right to reinstate legislation with the smallest possible majority (61 out of 120 lawmakers);
  • Turning the current legal advisors in the ministries from professional officials into politically appointments controlled by the ministers;
  • In addition, a number of retroactive laws have been enacted or are in the pipe-line, tailor-made to Prime Minister Netanyahu and other ministers’ needs to make them fit to serve in the government despite on-going trials or previous convictions.

On Tuesday, Kohelet Policy Forum, a conservative Israeli think tank which is involved in the drafting of the government’s proposal, surprisingly called for a compromise solution. Among others it seemed prepared to delete the override clause, a clause which in practice would have abolished the Supreme Court’s scrutiny of the parliament’s legislation.

“The fundamental principle behind the reforms is restoring democracy and Israel's checks and balances,” law professor Eugene Kontorovich, Head of International Law Department at Kohelet, told The Brussels Times. “The so-called override clause was never the most important aspect.”

“Currently, the Court claims absolute power over every governmental decision or action, including even the power to strike down constitutional provisions as being somehow ‘unconstitutional’ and even to remove the Prime Minister or any other official absent any statutory basis. Other aspects of the envisioned compromise address these abuses.”

He advocates the application of the principle of non-justiciability. “Justiciability are a set of legal norms in most countries that courts cannot rule on non-legal conflicts, especially including foreign policy, military issue, operations, or discretionary choices like cabinet appointments.”

Kohelet seems less keen on a compromise over the composition of the committee that selects Supreme Court judges, another key element in the government’s proposal. There is consensus in Europe that political involvement in the appointment procedure endangers the neutrality and independence of the judiciary.

While opening a door in the current deadlock, it is unlikely that the judicial hardliners in the coalition government and its ultra-orthodox and ultra-nationalist partners will agree to delete the override clause or even increase the required majority for overriding a court ruling.

Update: In a speech broadcasted on TV on Tuesday evening, and after warning for civil war, Israel’s President Isaac Herzog presented his proposal for a compromise solution (“The People’s Framework”). The proposal has been sent to all member of the parliament (Knesset) and will be uploaded on a public website.

M. Apelblat

The Brussels Times

Copyright © 2024 The Brussels Times. All Rights Reserved.