The judicial reform crisis can become an opportunity - opinion

"Propose the creation of a constitution for Israel, based on the Declaration of Independence, that would guarantee the right to vote and uphold majority rule while guaranteeing basic human rights..."

 MKS YAIR Lapid and Benny Gantz stand next to each other during a debate in the Knesset plenum last week.  (photo credit: YONATAN SINDEL/FLASH90)
MKS YAIR Lapid and Benny Gantz stand next to each other during a debate in the Knesset plenum last week.
(photo credit: YONATAN SINDEL/FLASH90)

Yair Lapid and Benny Gantz: As leaders of the opposition, you have a chance to flip this crisis, in which Israel’s democracy is in danger, into an opportunity for Israel’s democratic structure to be strengthened. Rahm Emanuel, President Barack Obama’s chief of staff, famously said: “Never let a serious crisis go to waste… [it is] an opportunity to do things that… you could not do before.”

You have to lead with courage and make a public offer to negotiate now. Defy some of your base by negotiating on the judicial reform, even though the coalition did not freeze the legislation process. Shift your stance from just opposing Prime Minister Benjamin Netanyahu’s alliance with extremists to eliminate checks and balances, to offering a positive program. Propose a non-partisan restructuring of Israel’s government balance, including judicial appointments and judicial review, which can win the approval of the majority of Israelis on the Right and Left.

Offer a program that goes beyond adjusting the coalition’s laws attacking judicial review. Invite representatives of Likud and the coalition to join you to create a comprehensive program to respect the Knesset’s power while preserving the judiciary’s independence and assuring Israel’s democratic nature.

Propose the creation of a constitution for Israel, based on the Declaration of Independence, that would guarantee the right to vote and uphold majority rule while guaranteeing basic human rights and minority protections. If you cannot get agreement on a constitution, prepare to pass a series of Basic Laws, starting with the law on Human Rights and Dignity. These laws could become the nucleus of a future non-partisan constitution. 

The constitution and/or the reenacted Basic Laws (and all future Basic Laws) would have to be passed by a super-majority of 70 MKs (or 65 as long as at least five of those votes are from opposition MKs). This requirement assures that the bulk of the Israeli population supports the constitution and/or Basic Laws.

The High Court of Justice can invalidate laws that it considers in conflict with the future constitution/Basic Laws. However, a major cohort – say 12 out of 15 judges, this number is negotiable – would have to sit in such cases. A super-majority of the judges (say two-thirds) would have to vote to invalidate a law.

The politicians would be given an additional seat on the judicial selection committee to increase their influence but not give them absolute control. The present requirement that the committee must support the individual judge choice by a minimum of two-thirds of its members would continue.

This ensures that all judges are accepted by a consensus (or beyond one fraction) of the members. The qualification guidelines for candidates would continue as in the past, but give great weight to add diversity to the court’s makeup. The legal advisers to the ministers would continue to be chosen by professional standards and be accountable to the Justice Ministry. 

Compromise protocols

YOU SHOULD stress that these are compromise protocols. Personally, we prefer no changes to judicial review. But these concessions recognize that the coalition has won an electoral majority and is entitled to judicial reform adjustments. 

However, these compromise proposals uphold the independence of the judiciary. The present coalition proposals undermine the independence of the judiciary. The coalition’s present proposal would strike a deadly blow to Israel’s democracy and to the start-up nation/hi-tech economy by scaring off investors.

You should make this offer public and make clear that here is an opportunity to create a constitution/Basic Laws/judicial review process that is accepted by the majority of Israelis and does not splinter Israel into warring sectors that deny the legitimacy of the other side. 

At the same time that you make this offer, you must turn to the Arabs of Israel and their political representatives. Ask them to follow in the footsteps of Mansour Abbas and his Ra’am party and accept Israel’s legitimacy as a Jewish state, but combine this pivot with the demand that the Arab Israelis be given full equality and full minority rights.

Pledge that you will follow through with a major investment program in the infrastructure of the Arab community, which you will help bring to full equality. Such a step would also mean that Arab Israelis and their parties can be an important part of future ruling coalitions.

The present crisis over democracy has taught the Arab Israelis that their minority rights are vulnerable and that their full participation in governance is critical to their future. They see that the enemies of democracy in the current coalition refuse to allow Arab parties into the governing coalition. This is the Joint List’s chance to give up its anti-Zionist, unpatriotic policies that have hurt its credibility and acceptance.

Past policies have betrayed the substantial majority of Israel’s Arabs who want to live as full citizens in a democratic and Jewish state. At this moment, they can join the State of Israel’s democratic process and use its mechanisms to attain full equality and dignity. Work with them to make this historic turn a breakthrough for Arab advancement and full equality. 

It may well be that Netanyahu, Yariv Levin, Simcha Rothman and co. have made the determination to push their judicial coup through. They may well try to use the negotiations to give themselves a false color of moderation. The refusal to pause the legislation, as requested by President Isaac Herzog and the two of you, is a bad sign. It suggests that they are going all out to rule or ruin. If so, you will deal with that crisis when it comes. 

If you communicate your entire program to the electorate, then it will be clear to the public that the coalition has chosen the wrong path and that they are refusing to stop the policy of polarization and bitter division in Israel. Then they will convict themselves of choosing the program of harming democracy and destroying the judiciary for their own bad reasons. 

Then moderate Likud voters, and responsible voters on the Right, will see clearly the motivation and ruinous goals of the coalition. There is already significant movement away from the guilty parties.

A negotiation that failed because of the coalition’s unwillingness to find a compromise that unites Israel and protects democracy and the economy, will shift meaningful numbers of voters to the opposition. You will come out politically stronger, having strengthened democracy overall – and you will have more support to resist the unjust legislation and stop or reverse it.