Yes to reform, but not this one
Jan 29, 2023 | Yedidia Stern
Public attitudes toward the reform proposed by Justice Minister Yariv Levin correspond to political affiliation. A large majority of right-wing, ultra-Orthodox, and religious Israelis support it, and a large majority of centrist, left-wing, and Arab Israelis oppose it.
Half the nation, drunk with political power, wants to wield it to the fullest extent.
The other half, anxious and depressed, opposes any change and sees it not just as the end of democracy, but as a slippery slope that threatens the very existence of the state.
In fact, however, the relationship between politics and law is not a matter of belonging to political camps or taking sides in the Israeli culture war. The positions being heard today are the result of Israel’s current constellation – a right-wing and religious majority in the Knesset, and a liberal majority in the Supreme Court – but this is a momentary reality that may change, if not tomorrow, then later. We must not base our constitutional regime on a short-term feasibility analysis, on shifting sands.
The task of striking the proper balance between the government authorities – the legislative and executive branches on the one hand, and the judicial branch on the other – ought to be discussed in a serious way, i.e., “behind a veil of ignorance.” There, behind the veil, we don’t know who holds a majority in the Knesset or the ideological and cultural orientations of the Supreme Court justices. Only there can we conduct a careful and impartial examination of benefits and risks to the public for each of the specific proposals included in the reform package.
The reform aims to achieve two overarching goals: one is to change the genetic code of the judiciary by politicising it – and this must be firmly and unequivocally opposed; the other is to modify the powers of the Israeli courts – and here there is room for a professional discussion that could result in altering the existing situation.
Politicisation of the judicial system
The intended reform seeks to politicise the system on several levels: changing the composition of the Judicial Selection Committee, with a majority accorded to politicians; holding hearings for Supreme Court nominees in the Knesset’s Constitution, Law and Justice Committee, and making ministry legal advisers fiduciaries of the ministers. These proposals are extremely dangerous because they undermine the legal system’s independence, essentially decapitating it, thus stripping it of its ability to function for the common good.
Israel is a “state of all its minorities.” No Israeli is guaranteed long-term status as part of the majority group. We are all threatened minorities: women, gays and lesbians, Arabs, ultra-Orthodox, settlers, the disadvantaged, the wealthy, and others. We all need an independent court to protect us when the majority abuses us on the basis of interests or ideology.
But if the judicial system is politicised, the system itself will become a political actor. If the appointment of judges depends on “flavour of the day” politics, it will be impossible to trust the Court to stand up for us in times of need, against the will of the majority.
There is no need to touch the Judicial Selection Committee’s composition. Then Likud lawmaker Gideon Sa’ar already introduced the necessary amendments in 2008 – the requirement that a majority of seven of the nine committee members is required to make appointments to the Supreme Court – and later Justice Minister Ayelet Shaked already made use of it in appointing hundreds of conservative judges across the judicial system, including several Supreme Court justices.
The veto power granted to “law” and to “politics” in the present committee configuration ensures that it will see to a balanced composition of the Court, and that is what has been happening in recent years.
Those who want to ensure that the executive branch will exercise its authority according to the law, for the benefit of the public, must institute a legal advisory system that will not submit to the dictates of those in power – the ministers. The “client” of a legal adviser in a government office is not the appointed minister, but the entire public.
In this way they differ from a private citizen’s legal adviser, who must act in the interest of the individual who hired their services. Legal advisers who know they serve at the pleasure of the minister, to “just let them govern” to put it euphemistically, are problematic.
But aside from the requirement to fully preserve the legal system’s independence from politicisation, one must be open to new ideas regarding the proper set of powers granted to it.
Powers of the courts
The courts exercise judicial review of the reasonableness of executive action through a series of grounds: weighing extraneous considerations, exceeding authority, improper procedure, and discrimination, among others. Over the past generation, yet another ground for judicial review has emerged: “extreme unreasonableness.” This is what the court case over the appointment of Minister Deri was about.
Although the law did not prohibit the appointment, the Court examined whether, under the circumstances of the case – repeat convictions, a promise that he would not return to public life, and more – the decision to hand Deri a ministerial portfolio is so misguided in the eyes of a “reasonable person” that it must be annulled.
Opposition to the extreme unreasonableness criterion stems from its ambiguity, and because, as noted by the retired chief justice Asher Grunis, the Court does not have greater expertise than any citizen in determining what is reasonable and what is not. Such opposition is supported, in various ways, by many past justices. There appears to be room for professional debate on this question, focused on better defining the criterion itself and determining the scope of its applicability. The extreme positions – all or nothing – are not justified.
The reform item most widely discussed is the override clause. Who will have the last word on disputed questions – the Knesset or the Supreme Court? It has been proposed that the Knesset be able to reinstate laws invalidated by the Court with a 61-member majority. This proposal amounts to a complete loss of protection for the rights of citizens and minorities in Israel. The outcry against it is justified.
But even here there is a range of options, such as granting the Knesset override authority only with a larger majority (70, say, or a majority that includes MKs from the opposition), or denying the Knesset override authority if the invalidity of a law was agreed upon by a significant court majority (say eight of the 11 justices).
Another idea that merits serious consideration is the application of the override clause in a qualified manner, depending on the issue. For example, issues whose focus is the character of the Israeli public sphere ought to be decided by the Knesset, as they are essentially political. By contrast, issues that centre around human and minority rights would not be subject to override, as in these cases the Knesset majority is the threat that must be defended against.
Israel has no constitution and no basic law to regulate the relationship between the political and the legal. It would be a tragic mistake for these sensitive professional issues to be decided on the basis of a momentary political dispute between a right-wing government and the other half of the nation.
Those who oppose the reform as a whole and demonise the change seekers are wrong. Those who support the reform as a whole out of a sense that one had better “rush to the spoils” are also wrong.
Enough with the automatic fortification around the status quo, and enough with the voices calling for revolution. In Israel’s 75th year, the state must adopt a basic law that will serve Israelis when the veil of ignorance has been lifted.