The bandwidth of the public discourse is understandably narrow: Judicial reform, pro or against, and wide-ranging reforms proposed by the government and coalition or maintaining judicial status quo championed by the opposition. There have also been nuanced overtures, open to compromise, and a balanced judicial reform.
Dr. Micah Goodman has called this moment a pregnant opportunity: a constitutional crisis or constitutional moment. I believe that this may provide a window of opportunity to tackle the constitutional and electoral challenges long plaguing Israel: a true separation of powers, separating the Knesset (legislative) and government (executive).
Israel's separation of powers
The judicial reform’s most threatening component is the necessary control of all three major branches by the same body, the coalition of 61. Israel’s already flimsy separation of powers is composed of de facto two bodies, the Knesset/government and the judiciary. The Knesset and the government are both controlled by the same majority of 61 MKs, the coalition, which votes confidence in the government.
Executive and legislative decisions, the supposed prerogatives of the two branches are made by the very same coalition of 61 and its coalition agreements, administered by strict coalition discipline. This is not a bug but rather a feature of our prevailing system, the main check on the coalition being the judiciary.
Under the proposed reform, a coalition of 61 representing a slim majority of the public would have automatic control of (1) the Knesset, (2) the government and (3) the judiciary via the narrow override clause with a 61 majority and an automatic majority of the Judicial Selection Committee.
Among the many proposed changes, these two are about the end of the separation of powers as we know it. Sixty-one would rule them all. The only check left would be the coalition itself, under which small parties hold constant leverage over the prime minister and his ruling party.
So far, so good, critics of the proposal say the same. This overhaul means the end of liberal democracy, no separation of powers and no system for safeguarding minority rights. Yet critics mostly ignore our current system’s deep flaws. The main separation of powers in Israel is in the hands of an unelected judiciary that slowly usurped unprecedented powers over the years. The solution is not the one proposed by the coalition, the opposition, nor the nuanced compromises suggested. They all lead to unacceptable outcomes in democratic terms.
This moment, however, can potentially lead to a dramatic meeting of minds, a pregnant constitutional moment even more dramatic than what Micah Goodman described. The coalition seeks to return power to the public via its elected officials. They claim that the public should be calling the shots in a democracy. The opposition seeks checks and balances on power and the protection of minority rights, claiming there is no democracy without a check on the power of the majority.
The solution is simple; complicated but simple. It’s hard to inject into the narrow binary discourse, yet vital as oxygen for the future of Israel.
WE MUST separate the Knesset from the government, separate our branches and allow them to compete with one another. We need a Knesset independent of the government, representing the different districts of Israel, capable of ensuring that the executive does not impede minority rights; protecting the religious freedom of Yehuda from Bnei Brak and the freedom of movement of Mohammed from Taibe; an Israel in which the Knesset and government are separate, in which Knesset members answer to their local constituents and them alone, not to party heads. This is the key to overcoming this difficult constitutional moment and a solution to many of our other issues.
In such a world, the pressure of maintaining the judicial status quo would be relieved. The government can propose judicial nominees as suggested, while an independent Knesset accepts or rejects them, based on merit and the interests of local constituents.
An independent Knesset can determine the rules of the game for the judiciary and executive, who in turn can flex their own muscles. An independent government can fight terror and decrease the cost of living, without the fear of coalition politics dismantling it after six months, sending us back to general elections.
Accountability, efficiency, stability, governance, minority rights and returning the power to the people: all these slogans thrown around by both sides over the past years can be realized by a comprehensive plan to reform the judiciary, yet of equal importance is separating the Knesset from the government, returning the power to the people, locally, via district representation.
How would this system look? That’s up for debate. Prime Minister Benjamin Netanyahu said that to successfully lobby for change in public policy, one must dually speak to the interests of elected officials and to the sentiment of the public. My proposal is a federal executive system, with district Knesset representation and necessary judicial reform.
Yet, more crucial than the details is for the public discourse to make room for an actual judicial and electoral reform that these peculiar circumstances just may allow. Such changes are in the interest of both decision-makers and the public.
Practically speaking, these proposals are already all on the table. Gideon Sa’ar proposed a bill in the past Knesset, under which 60 MKs, half of the Knesset, are elected by district representation. Avigdor Liberman proposed a switch to a federal system where the executive branch is elected directly by the people, independent of the Knesset. However, these proposals have yet to be discussed as part of a comprehensive constitutional solution along with judicial changes, at a moment when the public is finally in the mood for major reform.
The moment is ripe. Throw these two proposals into the mix, combine judicial reform with electoral form and Israel has its ultimate constitutional moment.
The writer served as an adviser to deputy prime minister and justice minister Gideon Sa’ar in the previous government.