Michal Cotler-Wunsh

Another open letter to Israel’s friends in North America

Daniel Gordis, Yossi Klein Halevi, and Matti Friedman wrote strongly against judicial reform, but they didn't consider all the reasons to favor it

Last week, three people I deeply respect, Daniel Gordis, Yossi Klein Halevi, and Matti Friedman, addressed you in a direct letter. Poignantly, they minimized several critical points many have underscored: the current judicial situation is improper; the court ruled to take its own authority; and the attorney general holds exaggerated power.

The letter excludes the court’s declared “constitutional revolution” of the 1990s, though it is essential to comprehend Israel’s ongoing negotiation of checks and balances, particularly in a relatively young country that is challenged constantly from within and without.

Allow me to share another perspective, hoping we can engage in constructive conversation, with humility and openness.

Many Israelis feel the judiciary has overstepped — in many ways. Lawyers and judges from across the political spectrum tried to illuminate this issue for decades, recognizing the cumulative threat to the solidarity of Israel’s society. It is part of the politicization of law that has permeated the discourse, internally as well as internationally, rallying experts across disciplines, as well as military-generals-turned-politicians, to weigh in on the imbalance of power, in an ongoing process that simultaneously strengthened the judicial branch and significantly weakened the legislative, in both its legislative capacity and its duty to oversee the executive branch.

The conclusive pronouncement that “Israel’s government is moving to eviscerate the independence of our judiciary and remake the country’s democratic identity” shuts down differing viewpoints. For example, Dr. Adi Schwartz maintains that “Judicial reform is needed to preserve the legitimacy of Israeli democracy.” And Prof. Gil Troy writes, “Israel’s democracy is fine. Thank you for asking.” The absolutist definitive statement stymies a much needed, nuanced conversation, and ignores the learned views presented in the current Knesset Constitution, Law and Justice Committee, convened for precisely the purpose of this kind of discussion. Indeed, the three-reading legislative process and parliamentary reality of significant debate and amendment means, as many know and I can personally attest, that no bill is passed in the same version that it was first submitted. Moreover, qualified legal minds, including former minister of justice Daniel Friedman, former deputy attorney general Raz Nizri, and former district court judge Prof. Oded Mudrik, alongside many others, all agree on the imperative for reform, even if they disagree about its precise details.

Substantively, the expanded principles of “justiciability” and “reasonableness” by the Court are seen to afford “standing” to all and enable it to strike down decisions and legislation with narrow-majority opinions. The Court has seemingly unlimited ability to interpret legislation in ways viewed by many, across the political spectrum, as negating the intent of the law and overturning authorized decisions. One such case is that of allowing those who are alleged to undermine or act against Israel as a Jewish and democratic country, even while running for office, and then overturning authorized decisions to the contrary. Reform would protest not only the Court’s ability to strike down laws, but the resulting “chilling effect” on legislative initiatives that it is expected to strike down. The drive for such changes also highlights the consistent lack of willingness to accept recommendations to increase oversight, transparency, and accountability. Indeed, over the decades, many have objected to what is perceived as a selective application of principles, which fundamentally undermines the entire infrastructure. In the same vein, public trust in the Court has decreased to an all-time low, manifesting the chillingly accurate predictions made by former Supreme Court justices Mishael Cheshin and Menachem Elon, of blessed memory, regarding this exact kind of severe damage to the most important resource of the judicial branch that is the faith of the people.

The “end of democracy” outcry, insofar as it co-opts, drowns out, or delegitimizes diverse viewpoints, fuels a misleading campaign, including in North American and global media. Automatic opposition to varying attempts to (re)create vital checks and balances in Israel’s parliamentary democracy, appropriated by political actors who do not themselves adhere to democratic principles, exposes for many the very blind spot, double-standard, or lack of self-awareness that led to the current reform proposals. After five democratic elections in three-and-a-half years, with the public indicating that unity is in order, the real or perceived appropriation of law to “cancel” the multitudes who cast their ballots, stokes distrust, hatred, and schism.

Like the three authors, many of us were fortunate enough to move to Israel, including from North America, and to raise our children here. We do so unconditionally and happily, partaking with awe in the realization of the mission, vision, and values of Israel — as clearly stated in its Declaration of Independence — as the nation-state of an archetypal indigenous people returned after millennia of exile and persecution, committed to equality.

I hope we can pursue this critical conversation, with all those interested to understand its complexities. North American Jews and their leaders must make clear that reaching across the ocean to “rally” support for political ends disrespects democracy and liberal values. Better for North American Jewry to identify together ways in which its voices, experiences, insights and understanding of democracy can inform and assist in the ongoing process of nation-building. Certainly, this miraculous country can benefit from engagement with those that have more “seasoned” democratic experience, imperfect though it too may be, but only if it is conveyed in a non-paternalistic, respectful manner that appreciates Israel as a unique entity that connects to universal values from its own particular identity, and not that of the US or Canada, or that of Hungary or Turkey.

Encouraging diverse viewpoints, the open exchange of ideas would underscore the legitimacy, indeed dignity, of their differences from each other, even within our own families. It would expose and empower the many tens of thousands of moderate Israelis, who are not represented in the streets every week, silenced or chilled by those who, under pretext of sectoral or professional representation, presume to represent them. It would underscore the knowledge and trust in the incredible Israeli public that lives, breathes, serves and works side-by-side. It would encourage more of us to engage in informed discussion, to think critically about all views, and join in the nation-building challenge of our generation.

With blessings from Israel,

Michal Cotler-Wunsh

About the Author
The writer is a lawyer, research fellow, and policy and strategy advisor. She served as an MK in Israel’s 23rd Knesset, co-founding the International Bi-Partisan Task Force to Combat Online Antisemitism.
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