Time for candid compromise - opinion

Such unrestrained judicial activism is largely based on the judges’ best judgment and internal moral compass but not necessarily on the laws of the land.

 TEL AVIV last weekend: The Saturday night demonstrations and the street riots are not about the proposed legal changes or democracy, says the writer. (photo credit: TOMER NEUBERG/FLASH90)
TEL AVIV last weekend: The Saturday night demonstrations and the street riots are not about the proposed legal changes or democracy, says the writer.
(photo credit: TOMER NEUBERG/FLASH90)

The Saturday night demonstrations and the street riots are not about legal reforms or democracy. Protests are legitimate but the demonstrators and rioters should not fool or disguise themselves, even on Purim, to be the defenders of Israel’s democracy. They’re not. Many of them either misunderstand the legal reform or find it difficult to accept the election results.

Changing the structure of Israel’s judicial selection committee and holding transparent hearings for Supreme Court candidates before they are appointed is not the end of democracy. On the contrary, this proposed change will align Israel with most of the world’s liberal democracies.

Limiting the authority of unaccountable legal advisers and empowering elected officials who bear responsibility for decisions made will not overturn democracy either. This, too, is the norm in most normal democracies.

Similar to Israel, New Zealand is a parliamentary democracy with 120 members and an uncodified constitution. Their judges can’t cancel basic laws and are appointed by their governor-general. Is New Zealand less democratic than Israel? On the contrary, New Zealand is consistently ranked in the top 10 of global democratic country indexes, well ahead of Israel.

Concerned Israeli citizens abound

There are many concerned citizens with candid concerns. Their concern stems from being led to believe that the reform will enable an indicted prime minister to choose his judges and that too much power will be transferred from the judicial branch into the hands of politicians. These concerns can be put to rest.

But well before the elections and the suggested reform, the leaders of the demonstrations revealed their hands. Former general Ehud Barak pledged on September 11, 2021, and again on December 29, 2022, that “if Netanyahu gets 61[mandates] we will need to bring a million people to the streets in order to block him with their bodies and I promise to be one of them.”

When Prime Minister Benjamin Netanyahu’s coalition got a decisive 64 mandates to win, even the relatively moderate former general Gadi Eisenkot reiterated, on December 1, 2022, that “the only way to confront Netanyahu is to bring a million people to the streets.”

Other former generals and even lawyers have rallied citizens to take arms and take to the streets. This is dangerous and makes a mockery of democracy.

The suggested legal reforms are actually a more moderate version of what the protest leaders propagated in the past. At a 2014 conference at Reichman University, Opposition Leader Yair Lapid said, “I opposed and still oppose the judicial activism of Justice Aharon Barak. I do not agree with the idea that everything is justiciable, nor do I agree with the Supreme Court’s upending of norms using the reasonable person principle – itself a wholly subjective and obscure definition which the Knesset has never adopted in its legislation.’’

Former Justice Minister and current Opposition whip Gideon Sa’ar traditionally held very similar views to those of sitting Justice Minister Yariv Levin. He thought that, like most democracies, Israel’s government should have the authority to make policy decisions. “The Knesset has the final say because the Knesset represents the people. The government bears the responsibility and as such has the final say,’’ Sa’ar wisely said in 2014 before his temporary retirement from the Knesset.

ON THE eve of the recent elections and in an effort to prevent the possibility of easily bringing down a Gantz-led government, the Israel Institute for Democracy published a draconian position paper that if adopted would fortify a minority government. They called for a legal reform in which the Knesset could only be dispersed with at least 70 Knesset member votes and in which the government could continue to rule without a budget for up to two years.

Once the “wrong” side won the elections Gantz, Sa’ar and The Israel Institute for Democracy peculiarly dropped the suggested reform.

Cynicism apparently has few limits. The same people who only a few months ago supported a government led by a six-seated prime minister who pivoted 180 degrees on his key campaign promises to form a coalition with a Muslim Brotherhood party are now lecturing the public on constitutional law and democracy.

Details may differ but all surveys show that most Israelis want legal reform and for a good reason.

Aharon Barak’s “everything is justiciable” philosophy transformed Israel’s judicial system in the 1990s. Barak created rules of law that have no counterpart in most if not all of the democratic world. For example, judges in Israel cannot be removed by the legislature, only by other judges and any government action declared unreasonable by the Court is considered illegal.

Such unrestrained judicial activism is largely based on the judges’ best judgment and internal moral compass but not necessarily on the laws of the land. That results in almost unlimited judicial authority and ambiguity where clarity is crucial.

The court’s lack of clarity is coupled with a lack of consistency. For example, in May 1999, when the right-wing government in Israel decided to close the Orient House (the PLO’s headquarters in Jerusalem), an urgent petition was filed and Supreme Court justice Dalia Dorner decided that the step was unreasonable because general elections were only months away. And yet, five days before the 2022 general elections, after an urgent petition was filed against an agreement, signed by a left-wing government, yielding areas of what were claimed to be Israel’s territorial waters to Lebanon and the control of Hezbollah, the Supreme Court led by Ester Hayut decided that was reasonable.

An overriding principle of the proposed reform is that laws drafted by the legislators (i.e. the Knesset) can be interpreted by the courts but not drafted by them and that national policy should be determined by the Knesset, as the representatives of the people.

There is little hope for conciliation with reckless politicians and former generals who call for civil war and blood in the streets. There should be no negotiation with those who want to burn down the house. But there is plenty of room for candid compromise with concerned Israeli citizens who have hope and still see “Hatikva” as our national anthem.

Regardless of how the current crisis began, it is important to realize we are, indeed, in a crisis. If managed appropriately, it will enhance the probability for agreeable and effective change.

An agreement is within reach. One amendment to the proposed reform that can relieve concerns is that Supreme Court judges appointed by the new judicial appointment committee will not hear old criminal cases, including the one being heard against the prime minister for the past three years. These cases will be heard by currently sitting Supreme Court judges.

Change is critical and compromise is possible. The people, by means of their elected representatives in the Knesset, can and should work it out now. Let’s agree on how to enhance the proposed legal reform and not how to postpone or cancel it.

The writer is a founder of Acumen Risk Ltd., a lawyer and a research fellow at the International Counterterrorism Institute in Herzliya. The opinions expressed here are his own.