A legal revolution or necessary legal reform?

I have great empathy for Israeli demonstrators protesting against legal reform. The feeling that democracy is being taken away from you and that the rules of the game are being changed, is a terrible one.

With a prime minister being tried for corruption, a minister recently convicted, and a coalition with religious parties, I understand why they are concerned. I hear their voices, and hope that the coalition will hear them too.

I have felt this way for the past 15 years together with a large group of Israelis who have felt this way since the mid-1990s.

Many Israelis, I would argue, and a lot more than those who are now protesting, feel that the current state of affairs in Israel is unfair and undemocratic. They feel that the Supreme Court has taken more and more power into its own hands, making their political choices less relevant and turning them into second-class citizens whose voices aren’t heard.

They feel unheard because the Supreme Court cancels laws and overrides government decisions – laws regarding Israel’s immigration policies, and decisions ranging from military restrictions to when a holiday should be celebrated.

I’m all for a liberal democracy in which the power of the government is limited, and rights, especially individual freedom, is preserved. However, this is for the people and their elected representatives to ensure not the courts.

I have a feeling that had National Security Minister Itamar Ben-Gvir been nominated as a Supreme Court Justice, many people currently against the reform wouldn’t be happy with him having the final word.

The proposed reform, all parts of which could be subject to negotiation, suggest allowing the Supreme Court to declare laws to be unconstitutional only under a full bench (15) and with a substantial majority (12).

Should parliament still wish to pass such a law, it would be able to override the court’s ruling if there was a majority of Knesset members – 61 MKs.

One proposal suggests that if the court’s decision is unanimous, it cannot be overridden by parliament. Another suggests that an override be required to pass with a 61 majority in two votes, the second to take place after a new Knesset is elected. Only then will the Knesset have the final word.

One of the key elements of a vibrant democracy is the separation of powers. The judicial branch in Israel should remain just that. However, when it comes to nominating judges, there’s room for politicians to agree on appointees, just like in the United States, and just like in most Organisation for Economic Co-operation and Development countries, as well as in South Africa.

The current selection committee consists of nine members. Three of them are sitting justices, two are representatives of the Israel Bar Association, two are ministers, and two members of parliament – one from the opposition and one from the coalition.

Appointing a new justice to the Supreme Court calls for seven out of nine majority. This enables the justices veto power. Not only is the judicial branch rife with nepotism, it also fails to represent the Israeli public.

The current proposal calls for replacing the two Bar representatives with politicians. There are several options for how they will be appointed, but eventually all of them give the upper hand to the government. I don’t agree with this reduced separation of powers. Politicians come and go. Judges, once elected, are independent.

Another part of the reform addresses the court’s authority – or lack thereof if to be accurate – to review and invalidate basic laws. Although Israel doesn’t have a Constitution, the Supreme Court is allowed to cancel a law if it deems it to be in contradiction of a basic law.

There’s no legal basis for the court to address the basic laws themselves. After all, there’s something dishonest in arguing that Israel doesn’t have a Constitution but the basic laws are the Constitution. There’s something dishonest in claiming that the basic laws are the highest norm of society, but the court is authorised to discuss them on the basis of higher-norm principles that aren’t written anywhere.

At the end of the day, the real issue with this legal reform isn’t the legal parts of it. If the dispute is about having another member of the opposition, or requiring a 63 majority instead of 61 in a voting process, that can be discussed.

The real concern is the distrust that exists, with both sides believing ill intent on the part of the other. If we could have a real conversation, we could find the true difference of opinion – who should have the final say in a (liberal) democracy? Is it the public through its elected representatives, or unelected judges and legal advisors, who some people refer to as gatekeepers?

• Ran Bar-Yoshafat is deputy director of the Kohelet Forum.
• He will take part in a live debate being held by the South African Zionist Federation on judicial reform on 9 March at 19:00 on Zoom. See www.sazf.org for more details.