My Word: Legal reform, trial and errors

Demonstrators took to the streets – and more seriously, tried to block main highways – with declarations that the reform was a “coup d’état.” Is this as dangerous as the reforms?

 UPREME COURT President Esther Hayut and justices take their seats for a hearing on January 5 regarding the appointment of Shas leader Arye Deri as a minister.  (photo credit: YONATAN SINDEL/FLASH90)
UPREME COURT President Esther Hayut and justices take their seats for a hearing on January 5 regarding the appointment of Shas leader Arye Deri as a minister.
(photo credit: YONATAN SINDEL/FLASH90)

The phrase “playing devil’s advocate” has come to mind a lot lately. Just who the devil is, in this case, depends on which side you stand along a deep political divide. The tumult following new Justice Minister Yariv Levin’s announcement on January 4 of a judicial reform deserves a nuanced response. But neither side is telling the whole truth, and nothing but the truth.

Levin’s judicial overhaul triggered an uproar, mainly among the country’s Left which, having just lost the election to Benjamin Netanyahu’s right-wing and religious coalition, was already feeling under threat. The High Court decision this week when 10 judges and an 11th dissenting opinion ruled that coalition partner Arye Deri cannot serve as a minister created a backlash on the Right and among followers of Deri’s Shas Party, in particular. Shas has long fostered the belief that Deri is being persecuted, rather than prosecuted. The same is said by many Netanyahu followers, as the prime minister battles his way through several court cases.

Levin’s plan calls for curtailing the power of the Supreme Court, including an “override clause” of 61 Knesset members, abolishing “reasonability” as grounds for the court to cancel government decisions, giving the government control of the judicial selection committee, and allowing ministers to appoint their own legal advisers.

Demonstrators took to the streets – and more seriously, tried to block main highways – with declarations that the reform was a “coup d’état.” Some went as far as comparing it to the Nazi Nuremberg laws. 

The rhetoric and incitement is arguably as dangerous as the reform itself.

Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)

Levin has stressed that the proposed reform will go through due process in the Knesset, where the Constitution, Law and Justice Committee will invite legal experts and be open to people across the political spectrum. The committee, however, is chaired by Religious Zionist Party MK Simcha Rothman, who literally wrote the book on reforming the judiciary as the author of The Ruling Party of Bagatz: How Israel Became a Legalocracy. (Bagatz is the Hebrew acronym for the High Court of Justice.) 

Those opposing the reform seem to have been taken by surprise by the speed with which Levin announced it, just a few days after being appointed minister. The wheels of justice grind exceedingly slowly, but Levin, Rothman and the coalition wasted no time in trying to keep this particular election promise

There was a certain irony – or poetic justice, depending on where you stand – in the way that former Supreme Court president Aharon Barak last week gave a round of interviews blasting the reform plan, saying in one: “If putting me to death would put an end to this drastic shake-up, I’d be prepared to go before a firing squad.”

“If putting me to death would put an end to this drastic shake-up, I’d be prepared to go before a firing squad.”

Aharon Barak

Strangely, the media and Left did not label Barak’s words “incitement” the way they would had the same thing been uttered by a figure identified with the Right.

It was the program of  “judicial activism” promoted by Barak in the 1990s, under which the courts assumed more power to overturn laws passed by the Knesset, which created the current counter-blast from the Right and many from the religious and ultra-Orthodox sectors. 

Barak’s stand was that “Hakol shafit,” everything is justiciable – you can’t rule anything out. Not incidentally, on Barak’s watch, under his legal eye, the Knesset in 1992 enacted two Basic Laws which the courts consider to be a version of a constitution.

The principle of judicial review and the ability of the courts to overturn laws which are in clear violation of basic human rights is an important one – that’s why it needs to be used judiciously. Similarly, the courts should be extremely cautious about ruling on matters of a political nature. Political decisions can be changed by public campaigns and election campaigns, and ultimately in the ballot box; not so, court decisions.

Defining the letter of the law as opposed to determining what is “reasonable” are two different things. Both are open to interpretation but when a decision is value-laden, the question arises of who determines which value is inherently more “valuable” than another. 

One thing is certain, over the years the Supreme Court has become – willingly – involved in decisions which are essentially political ones.

As Evelyn Gordon wrote in Azure in the 1990s, “An absence of written constitutional limits... clouds the court’s role. If judges are granted the power to overturn government action in defense of rights which are themselves not explicitly protected, there is a constant danger that the justices will end up imposing their own ideas of what types of behavior should be protected, thereby usurping the prerogatives of the legislature.... 

“The Israeli Supreme Court, however, sees the lack of a constitution not as a call for restraint, but the opposite.”

The cries last week of current Supreme Court head Esther Hayut – aired primetime – hardly came as a surprise. However, given that Barak and a large number of leading legal figures were not shy about speaking out, it might be asked why Hayut and Attorney-General Gali Baharav-Miara, who spoke after her, needed to add their voices so publicly while actively serving in the very positions that are under attack. They are, after all, very well-paid civil servants.

How well paid?

Amid all the politicking going on this week, I couldn’t help but notice that the Knesset approved a 5.1% cost-of-living raise for MKs, ministers and judges (whose salaries are linked with those of the politicians). After the hike, the prime minister is set to earn some NIS 59,000 a month while the Supreme Court president will receive almost double that, approximately NIS 109,300 monthly. No wonder there’s an argument about where the buck stops. The top justice earns the bigger bucks.

IT IS FASHIONABLE to depict Israel in apocalyptic terms, although few of the doomsayers have read Levin’s proposed legislation itself and no one knows what the final bill that emerges from committee stages will look like. 

The country can’t function when the elected government tries to take it in one direction and the unelected and unimpeachable courts push it in the other. The question of what is reasonable to one side – regarding migrants, settlements, and protecting the Jewish nature of the one Jewish state, for example – seems to be automatically considered unreasonable by the other. Judge for yourself. Next time you mumble, “There ought to be a law against it,” think what that means in the long term. A democracy needs to find the balance between protecting the rights of minorities and the right of majority rule. 

I was not comfortable with Shas leader Arye Deri’s appointment to the government, let alone as minister in charge of two unrelated ministries. No one should be a law unto themselves. I prefer the country’s leaders to have political convictions rather than legal ones. Deri has served jail time for corruption and was later convicted for tax offenses. Nonetheless, there is no doubt that he was democratically elected and anyone who voted Shas – which garnered 11 Knesset seats – knew who was standing at the head of the list.

The High Court ruled on Wednesday that Prime Minister Netanyahu should remove Deri from his positions holding the Interior and Health portfolios due to the appointment’s “extreme unreasonableness” and the Shas party leader’s plea bargain in which he promised that he would not return to public life due to his most recent conviction for which he was given a suspended sentence.

The Deri case decision will obviously have political and social repercussions. It was ultimately a test not only of what is “reasonable” but also of what is “justiciable.” 

The situation is charged but the country is free. Witness the press, which gave plenty of primetime coverage to the speeches and rallies.

The tragedy is that the troubled relationship between the legislative and executive branches and the judiciary has gone from being a game of ping-pong to becoming a wildly swinging pendulum and a slanging match. 

Care needs to be taken – by every citizen – to ensure that sparking a debate does not lead to igniting an inferno. Wholesale destruction of the legal system is not democratic but dismissing the entire judicial reform out of hand at this early stage is courting disaster. The devil, as they say, is in the details. 

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