Israel's judicial reform needs legitimacy to be effective - analysis

For these reforms to work, they will need public legitimacy, and for that legitimacy to be granted, all sides of the political spectrum need to have a say.

 Israeli opposition leader Benjamin Netanyahu gestures at the Knesset in Jerusalem, on May 30, 2022. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Israeli opposition leader Benjamin Netanyahu gestures at the Knesset in Jerusalem, on May 30, 2022.
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

“The noise of too many opinions is the din of democracy,” 20th-century American satirist Peter De Vries once wrote. “But when the noise is too great, it drowns out wisdom.”

“The noise of too many opinions is the din of democracy. But when the noise is too great, it drowns out wisdom.”

Peter De Vries

That quote aptly describes the current debate in Israel over the judicial reform proposal Justice Minister Yariv Levin unveiled at a press conference last Wednesday night.

That plan triggered ear-splitting noise, with those opposed, such as former Supreme Court president Aharon Barak, among many others, warning of the end of Israeli democracy, and those in favor, such as Prime Minister Benjamin Netanyahu, saying it will rescue Israeli democracy.

The airwaves have been filled with those passionately bashing the reform, and others equally fervent in defending it. The cacophony is drowning out reasoned debate about the advantages and disadvantages of the reform. Everyone is speaking in apocalyptic slogans: “the birth of authoritarianism” on the one hand, and the “end of judicial tyranny” on the other.

 Israeli opposition leader Benjamin Netanyahu gestures at the Knesset in Jerusalem, on May 16, 2022. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST) Israeli opposition leader Benjamin Netanyahu gestures at the Knesset in Jerusalem, on May 16, 2022. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

It primarily depends on which side of the Israeli fault line one finds oneself – the pro-Netanyahu camp or the anti-Netanyahu camp. Those in the former camp applaud the reform, and those in the latter oppose it vehemently.

But the issue is so much weightier and deserves much deeper consideration than that currently taking place on the airwaves and in social media.

The reforms in question can recalibrate this country’s checks and balances for the next generation. According to an analysis of the election results and surveys over the years, most of the country believes that there is a place for judicial reform. The question is how much reform, and where.

The problem with how the current proposals are often presented is that they are binary: The judicial system either needs no reform or a complete overhaul. But there is a vast middle ground between zero and 100, and that is where the sides need to take aim for the good of the country.

For these reforms to work, they will need public legitimacy, and for that legitimacy to be granted, all sides of the political spectrum – not only those currently in power – need to have a say.

And here is where wisdom is being drowned out.

On Thursday, National Unity leader Benny Gantz made a wise proposal, calling on Netanyahu to form a committee composed both of coalition and opposition MKs to arrive at a broad agreement within six months on what needs to change and how to make those changes.

Why is this wise?

Because for significant changes to the judicial system to be instituted effectively, there needs to be as broad a consensus as possible so that the changes garner the legitimacy of the vast majority of the country, not just those currently in the coalition.

One oft-heard argument in favor of reform is that the public has lost confidence in the judicial system for a wide variety of reasons. But if reform is made with half the country shouting against it, the new system will also lack half the public’s confidence. And if that is the case, what will be gained?

“I call on Prime Minister Netanyahu to make a decision: negotiation or confrontation.”

Benny Gantz

“I call on Prime Minister Netanyahu to make a decision: negotiation or confrontation,” Gantz said. “An issue so fundamental to our future and existence for decades to come deserves a broad consensus. That will legitimize the reforms and allow the fortress to be built on a solid foundation.”

At Sunday’s cabinet meeting, Netanyahu rejected the idea.

“I have heard about the proposal to establish a public committee to discuss reform of the judicial system,” he said. Then, referring to the maritime border agreement signed with Lebanon in the waning days of the Lapid government, Netanyahu said, “I do not recall hearing a similar proposal to establish such a committee from the outgoing transitional government when it signed a capitulation agreement to hand over territory and economic assets of the State of Israel to Hezbollah. It did not even bother to submit the proposal to the Knesset for discussion, as required by law.”

Netanyahu said his government would act differently, and that the reform “will be discussed seriously and in depth by the Knesset Law, Constitution and Justice Committee, where all opinions – without exception – will be heard. This is the appropriate, natural and legal forum for this in-depth discussion.”

There are two problems with that response.

First, just because the previous government did not act appropriately – though according to the High Court of Justice, it acted legally – in not bringing the maritime border agreement to the Knesset for approval, it does not mean that this government needs to work similarly. As mothers around the world have been telling their children for ages: “Two wrongs don’t make a right.”

Second, as was painfully evident on Sunday, the Knesset Constitution, Law and Justice Committee is likely not the forum where a “serious and in-depth” discussion on this matter will take place. That committee on Sunday debated expanding the Norwegian Law to let more ministers give up their Knesset seats so that other party members can enter the parliament. However, any substantive discussion was lost as the committee meeting spiraled into a shouting and name-calling match between the Likud’s Hanoch Milwidsky and Hadash’s Ofer Cassif.

There is no reason to think that a discussion in that political committee on judicial reform – an issue substantively more charged than the Norwegian Law – would be held with any more decorum or be more substantive. Further, with the coalition having a firm majority in the committee, the results seem to be a foregone conclusion.

A committee established with representations from those parties interested in judicial reform that would hold public hearings and hear from all the experts, both pro and con, and then come up with agreed-upon recommendations that would then be taken to the Knesset Constitution, Law and Justice Committee seems a fair way to deal with a loaded issue without one side of the political spectrum left feeling that they have been steamrolled and their concerns dismissed because they are in the opposition.

The current atmosphere in this country is supercharged. This issue is only adding fuel to the flames. Genuine dialogue in the form of a public committee – not name-calling or slinging slogans on the radio or in a Knesset committee – with good will could lead to a search for compromise and a lowering of the flames.

There is obviously no guarantee, but the current noise should not drown out wisdom regarding how best to proceed on a matter with such far-reaching ramifications.