In our 2021 Israeli Democracy Index, which we recently presented to President Isaac Herzog, much emphasis was placed on the fact that only 41% of Jewish Israelis and 49% of Arab Israelis currently have trust in the Supreme Court. In a significant step, eight months (252 days) from the moment that the current government took office, four new justices were appointed to the Supreme Court, last week.
There is a lot of pressure on the cloaked shoulders of these new justices and their colleagues on the bench to restore confidence in the Supreme Court. While a professional and objective Supreme Court can make great strides in improving their image, at this junction a far more dramatic initiative is needed from the government and the Knesset to institutionalize the relationships between the three branches of government in our democracy.
As a first step, the members of the Supreme Court would do well to find ways to make it more apparent to the general public that they are involved in serious and thoughtful work, untarnished by political affiliations. It must be understood that those sitting on the bench in Jerusalem are motivated chiefly by the pursuit of justice and a desire to benefit us all. Recently, Chief Justice Hayut took an unprecedented step, when she published an open letter in response to the taunting insults spewed out by MK Dudi Amsalem.
But is that the best course of action for the president of the Supreme Court? Despite the temptation to do so and the applause in the short term, the justices would do well to stay above the fray. Unlike Knesset members, who will be facing primaries and general elections sooner or later, attacks on the Supreme Court are popular with segments of their base and are simply too tempting to avoid. Justices are appointed until the age of 70 and should have no reason for such public acts of political theater.
A second, more significant course of action, is related to the next steps taken by Justice Minister Gideon Sa’ar. During his first few months in office, Sa’ar has had to deal with many tasks that had been on hold until the appointment of a fully-functioning minister of justice.
He found himself in a ministry beset by a serious deficit of permanent officials, with an acting state attorney, acting director-general, acting head of the Privacy Protection Authority and many other senior positions left vacant. Sa’ar has brought aboard a series of top professionals and led the search for and appointment of the new attorney-general, Gali Baharav-Miara – the first woman to hold this illustrious position. On the legislative front, Sa’ar has already submitted an important Basic Law to protect the rights of suspects and those facing interrogation.
Against this background, Sa’ar needs to ask himself what the government should take on as its next major task. The answer is a Basic Law: Legislation that would anchor the status of Basic Laws, regulate the process of their enactment, protect them against frequent amendments motivated by political needs, and define the relationship between the Supreme Court and the Knesset. It is not by means of sharp-witted letters, but via a series of institutional arrangements that would mitigate the tension between the legislature and judiciary, and spawn fruitful dialogue between them, expressed in court rulings and legislation.
This task is certainly feasible. Although the coalition has the narrowest of majorities, it represents a broad mosaic of opinions, positions and diverse sectors of the population, much more diverse than its recent predecessors. A Basic Law: Legislation, if enacted on its watch, would enjoy a broad consensus and be a major milestone on the road towards the completion of a constitution for Israel. Indeed, it would be preferable for such fundamental legislation to be the product of an even broader consensus, with the support of many members of the opposition. After all, this is the essence of the proposed law: Widespread agreement on the rules of the game.
Unfortunately, the current political reality in the Knesset seems to indicate that we are still a long way from achieving this ideal. When he took up his post, Sa’ar established a coalition committee to draft the bill in question, but it has met only a few times and is far from completing its job. Now, it’s time for him to define the passage of this vital Basic Law as his next mission. In recent months, Sa’ar has demonstrated that he is endowed with the political skills that can bring the various parties of this coalition together to focus on common goals. Now is the time to aim high and bring this overdue essential national task to fruition.
The writer is president of the Israel Democracy Institute.