The Levin-Sa’ar Plan: Don’t Slam the Door on Someone Looking for a Way Out of Their Own Mess
The Levin-Saar plan abandons key elements of his earlier judicial overhaul, proposing changes to judicial selection and Basic Laws. While flawed, it offers a potential starting point for bipartisan negotiations to resolve Israel’s constitutional crisis.
Photo by Chaim Goldberg/Flash90
Last weekend, Yariv Levin managed once again to shock Israeli society and throw a spanner into the works in the public arena, which has endured more than two years of raging storms in the wake of the judicial overhaul he put forward on taking office as justice minister. Levin is now proposing a new plan to solve the severe constitutional crisis that has gripped the country since the formation of the current government—the “Levin-Sa’ar plan.”
Though the plan has only been partially published, its main elements can be summarized as follows: First, the composition of the Judicial Selection Committee will be changed in a way that will, on the one hand, reduce the power of the judges who sit on the Committee and entirely remove the representation of the Israel Bar Association, and on the other hand, will strengthen the hand of the Opposition. According to the proposal, while the right of the judges to veto appointments to the Supreme Court will be rescinded, the Coalition will not be able to control the Committee, as it will need the support of one of the Opposition representatives in order to appoint judges. Second, the Basic Law: Legislation will be passed, which will set clear and rigid rules for passing basic laws that restrict the power of the majority to legislate basic laws as it wishes, but which will also restrict the Supreme Court’s powers of judicial review regarding legislation in general and basic laws in particular.
Some have presented this plan as a “historic compromise” that offers a golden mean between the supporters and opponents of the judicial revolution. Others have argued that it is no compromise at all, but is merely “the same revolution in different packaging.” I would like to suggest that the plan should be seen as a draft notice of surrender and admission of defeat by Yariv Levin, and should be treated as such. Though it has many problems and drawbacks, and needs significant revisions, I think that Israeli society would do well to view the plan as the basis for negotiations. Let me explain why.
The judicial overhaul that Levin attempted to pursue shortly after taking office included four main elements: abolishing the reasonableness clause; changing the status of the attorney general; weaking the power of the Supreme Court to strike down legislation, and conversely, strengthening the power of the Knesset to override Supreme Court rulings; and altering the composition of the Judicial Selection Committee. Of these four, there is no doubt that the most important for Levin and his coterie, the “holy grail” of the judicial overhaul, was the last element, which was supposed to facilitate government control of the Judicial Selection Committee so that it could appoint whichever judges it saw fit. The premise was that, whoever controls the appointment of judges essentially controls the entire judicial system. This was why Levin sought to reshape the Judicial Selection Committee, so that the government would have an automatic majority to appoint whomever it wished. There is no need to point out just how serious and dangerous this proposal was, as it would mean making judges into the representatives of the ruling party.
The current proposal put forward in the Levin-Sa’ar plan represents a complete capitulation on this demand: instead of the government having full control of the Judicial Selection Committee, it would have to reach agreement on appointments with the Opposition. This is not the place to list the obvious flaws of Levin’s new proposal, which need to be addressed with changes and amendments. However, the central danger posed by Levin’s original reform—the government taking control of the Committee—does not feature in the current plan, and in effect has been taken off the table.
Thus, though I believe that the current structure of the Judicial Selection Committee is better than the one proposed in the Levin-Sa’ar plan, this new proposal, which explicitly abandons the dangerous idea that was at the heart of the judicial overhaul, can and should serve as the basis for a public discussion. When one’s opponent more or less admits defeat and searches for an exit from the mess they’ve made, the smart thing to do is to help them, and not force them to remain where they are. This does not mean that the proposal should be accepted as it is. But neither should we slam the door on it. Though the Levin-Sa’ar plan certainly cannot be considered the end of this affair and the solution to the constitutional crisis, it can be the first step on the path toward such a solution.
At the same time, there is another issue that must be presented as a prior condition for any possible solution. This relates not to the content of the plan, but to its consensual basis. Though it is being presented by Levin and Sa’ar as a compromise, this compromise is between two members of the same political party. This is no way to create a plan for solving a constitutional crisis. Any substantial change of the rules of the game, as the Levin-Sa’ar plan indeed proposes, must be made with the agreement of both sides of the house of representatives, not just by one of them. Thus, even if the content of the plan can serve as the basis for negotiations, it cannot be advanced solely by the Coalition, while the Opposition is entirely ignored.
This issue should also be addressed from another direction. While the Levin-Sa’ar plan does not go into detail about the procedure for passing basic laws, presumably it will be much more rigid than regular legislative procedures, requiring a special majority that is larger than the simple majority needed for regular legislation. If passing basic laws is to be made conditional on a special majority under the terms of the plan, in order to ensure broad agreement in the legislature, then such a requirement should also be applied to the plan itself, which is designed to serve as the foundation for such an arrangement. The plan, then, should be passed by a special majority in the Knesset, and should not be the outcome of a unilateral political decision agreed between Levin and Sa’ar.
When representatives of the Opposition are invited to participate in advancing the plan proposed by Levin and Sa’ar, they should accept the invitation and discuss the proposal seriously, and should make the necessary amendments to it. The proposal, with all its flaws, can and should serve as the basis for healing the rifts in Israeli society—but only if it is advanced with broad agreement, as befitting a rewriting of the rules of the game, and not via the majority exploiting its advantage while ignoring the Opposition.
This column was published in the Times of Israel.