The president has the authority to stop legislation against democracy

The Basic Law of the President of the State allows President Herzog to avoid appointing judges

עיתון בין אויבים

A newspaper among enemies

About a month ago, we here suggested to the president to search within his few powers, to find a tool to stop the coup d'état. Such a tool does exist: the president has the authority to actually appoint the judges of Israel, and therefore of course he cannot appoint the judges on whom the expected "governmental" committee to appoint judges will decide. Our legal commentator, former vice president of the Central District Court, clarifies:

By Avraham Yaakov our legal commentator

The first president of the State of Israel, Professor Chaim Weizmann, is credited with saying that "the only place the president of Israel can stick his nose into is the handkerchief".

Weizmann, smart and cynic, exaggerated a bit of course, but he gave a very graphic expression to what the president cannot do.

The role of the president is essentially representative. But not only. The president plays a crucial role in the issue of amnesty; The president is the one who assigns MKs to form a government; the president receives charters from foreign diplomatic representatives; the president signs laws – and the president appoints judges. The question arises as to what practical tools the president has to put pressure on the government to stop the coup d'état legislation and sit at the discussion table.

The transition law, Tashat-1949 states in section 2(b) that "every law shall be signed by the speaker of the Knesset, the prime minister and the minister in charge of implementing the law". Hence, there is no need for another signature for a law to enter into force.

Basic Law: The President, states that the President "shall sign any law except laws pertaining to his powers". However, as we have seen, this signature of the president is not a condition for the validity of the law. Hence, the president's refusal to sign this or that law has no practical meaning but only a declarative meaning which means the expression of displeasure and opposition of the number 1 citizen to the new law. The question is how strong will be the echo caused by the president's refusal to sign any law.

If the public echo in Israel were strong enough, and a significant echo from the countries of the world would join it – it is possible, and the court that would be asked to apply the law that the president did not sign, would refrain from doing so or give that law a very narrow interpretation that would in fact remove its content, and this for the reason that the public opposes it to this law, in view of the president's refusal to sign it.

Here a new struggle will develop: not between the judiciary and the executive, but between the executive and the president!

Such a situation is a disaster, especially when it comes to a president who enjoys great popularity in Israel and around the world (see the large public echo following the president's refusal to sign).

On the other hand, regarding the appointment of judges, the situation is completely different, and the president's executive authority is legal-constitutional. Section 4(a) of the Basic Law: The Judiciary states that: "A judge shall be appointed by the President of the State upon selection by a committee for the selection of judges."

Therefore, here the situation is clearly different: the president's signature on the judge's appointment certificate is constitutive! That is, his signature is the one that creates the appointment and not just declares it.

Therefore, the President has the power to refrain from appointing judges, despite the recommendations of the Appointments Committee. Such a situation will mean that the coalition will not be able to appoint judges, and in the current case to appoint judges as it pleases.

This is a significant lever of pressure that the president has, but will he use it? a question.