From the Sanhedrin to Israel’s Supreme Court and what is missing

Yes, we do need judicial reforms, but not necessarily the ones currently proposed.

Israel is facing the prospect of radical judicial refom proposed by the new right wing government. This is more than just reform, in fact it’s a major overhaul of the democratic structure of governance. It is highly controversial as its opponents believe that it will drastically undermine the substance of Israel as a democracy. I offer an analysis of the current situation and a proposal for future development.

How Strong is Democracy in Israel?

Most successful democracies in the West have at least three pillars  of governance that provide checks and balances. This is true of countries such as the United Kingdom, France, Germany and the USA. According to the Democracy Matrix[1], the strength of Israel’s democracy is ranked very low in 35^th place, after Latvia and Barbados, with Norway, Denmark, Finland and Sweden at the top of the list.

The reasons for this relative weakness lie in the limited democratic structure of Israel’s governance. The checks and balance operate with just a two pronged binary system between the legislative branch (namely the Knesset) on one hand, and the judiciary (specifically the Supreme court), on the other. The President of Israel has very limited powers confined largely to the post-election period and formation of government process and signing bills and treaties[2]. Furthermore, the executive branch (the prime minister and cabinet of ministers) is intertwined with the legislature and therefore there is no check between the two, except when a motion of no confidence[3] can cause a government to resign. Adding a second house to the Knesset as proposed below would strengthen the democratic process.

A major additional point of weakness is that Israel does not have a constitution or a bill of rights. In recent years, a number of Basic Laws have been enacted that were to have been the building blocks of a new constitution. This process is still underway, but the new reforms will weaken the power of those Basic Laws.

The hermetic separation in Israel between the government and the Knesset, on the one side, and the judiciary on the other, has over the years provided some effective checks and balance. But the proposed judicial reform will change that interaction by weakening the judicial system, allowing politicians to select and appoint judges and setting almost unsurmountable blocks to judicial override of conflicting laws passed by the Knesset.

Should a Slim Majority Impose its Will?

Democracy is a wonderful concept of governance but often not appreciated in its entirety. Some think that democracy is defined as rule by the majority. Indeed, this is partially true, but democracy is not solely rule by the majority and certainly not solely for the majority. Rather, protecting minority groups is an essential component of democracy as are basic human rights such as the freedom of speech, freedom of religion, freedom of the press, the right to protest, and of course a free independent judicial system. Many of these protections and these rights are currently under threat by the proposed reforms.

The recent election in Israel empowered a far right government, whose supporters tend to ignore the fact that they have a very slim majority, namely only a four-seat majority out of 120 seats in the Knesset. Notwithstanding this fact they are endeavoring to enact a series of new laws and changes to the judicial system that will drastically change the democratic process in Israel and ultimately impact  all citizens, while potentially negatively affecting the personal and community rights of many minority groups. Sadly, the proponents act and speak as if it is their right as part of the government in power to make these changes, even though they do not represent the will of the majority of Israeli citizens, as evidenced by a number of recent polls that show that approximately two thirds of the public are against the judicial reforms as proposed[4] including many who voted for the current government.

Was there Governance in the Times of the Temple?

Strangely enough, some of those far right wing leaders who are proposing the reforms and even suggesting adopting Jewish religious Law (such as Finance Minister Smotrich) ignore our own distant history. While democracy in the modern sense did not exist in Temple times, some of the instruments of democracy did and there was an extensive system of checks and balances that provided some equilibrium of governance. For example, the Kings represented the executive branch, the Judges and Sanhedrin represented the judiciary, the Priesthood provided spiritual direction and the Prophets were a sort of voice of the people. In contrast,  the new reforms proposed will eradicate most of the few checks and balances that do exist today and provide unlimited power to the politicians in power.

Can Mass Demonstrations Lead to Change?

In response to the new proposals, the people have taken to the streets. Not just the left and the liberal, but the people in their masses, with hundreds of thousands demonstrating each Saturday night and weekdays in between. Many of those opposed to the judicial changes include the old guard of the right wing Likud party.

This is not the first time that mass demonstrations have taken place and split the country. Other major issues that created huge controversies and subsequent demonstrations included:

1952 – The agreement to accept monetary reparations from the German Government after the Holocaust

1973 – The failures of the Yom Kippur War

1982 – The evacuation of the Jewish settlement of Yamit and the Sinai Peninsular

1982 – The massacre in the Sabra and Shatilla refugee camps, Lebanon

1993 – The Oslo peace agreements

1999 – The toll of the continued Israeli presence in Southern Lebanon

2005 – The disengagement from Gaza and Northern Samaria

2011 – The high price of “cottage cheese” and housing crisis

While long lasting radical social change did not emerge from most of these events, in each case the crises did end with some significant government action and improvement. Hopefully the protests will prove to be effective in stemming the radical and non-consensual reforms.

Can the President Induce Compromise?

In response to the opposition and the protests, the President of Israel, Isaac Herzog, has been active beyond his constitutional role. He has called for negotiations of all the parties under his auspices to find compromises and middle ground, criticized the current proposal and just now published his own compromise plan for judicial changes which he called the “People’s Framework”. Sadly, this bold move was summarily rejected by the coalition and by some of the opposition too, already within an hour of its publication.

But beyond, keeping the status quo or making less radical changes, I would argue that two urgent significant innovations need to take place.

Israel Needs a Constitution and a Second House

Firstly, before everything else, Israel needs a written constitution and a bill of rights. Some parts of a constitution through the Basic Laws have been enacted, and there is general consensus that the Declaration of Independence as signed in 1948 can act as a basis, as it contains much of the main elements of a constitution and clarifies the nature of Israel as a Jewish and democratic state. There have been some voices that have started to consider the process for creating a constitution for Israel whether by expanding the Declaration of Independence or by creating a constitutional conference. The President’s compromise proposal is an extension of these efforts that could open the path for further development. While some of the Basic Laws include protections and rights, a more comprehensive Bill of Rights is necessary.

The second change is more radical. Israel’s democratic structure needs an additional voice, a forum where ideas, issues and proposed laws be raised and discussed, in the form of a Second House to the Knesset. I am not proposing an upper house that has the right to approve, amend or veto laws, but rather a forum for discourse. The Second House should be a place where the representatives of the different components of society can debate issues of the day and act as a bouncing wall for legislation. The Second House should have the ability to propose amendments to laws (but no veto); similar to the role of the House of Lords in the UK.

Membership of the Second House could reflect a geographic representation, which is missing today in the Knesset, as well as members from different sectors of society. For example:

• Geographic representation – city and regional council mayors
• Religious representation – Jewish, Moslem and Christian leaders
• Representation from the Diaspora – leaders from the main Diaspora communities
• Representation of the arts, sciences, humanities and sports – for example Israel Prize winners
• Representation of the defense establishment – former heads of the IDF, Mossad and Secret Service
• Representation of economic sectors – heads of the business associations and former Governors of the Bank of Israel and former heads of the Histadrut (labor association)

All of the above represent sectors that have a stake in Israel and are impacted by the actions of government. As Jews in a multicultural society,  we have multiple opinions, so why not create a place for those diverse opinions to be expressed and debated, and to improve proposed laws? A very “Jewish” idea indeed.

To my mind, the Second House would also be a place where issues of the day can be debated, such as climate change, gender rights, artificial intelligence, religious freedom, educational systems, health systems, urban density, military and national service, the future of the IDF as the people’s army, and so much more. Out of these discourses can emerge new initiatives and new legislation to be suggested to the government of the day and to the Knesset.

The addition of a second house would add a constructive dimension to governance and democratic processes in Israel.

Will there be a Standoff and Constitutional Crisis?

If the government continues on its current path of steamrolling its legislative package of judicial reforms through the Knesset, we can expect a series of standoffs and constitutional crises unlike any before. Two radical confrontations may occur. Once the bills are approved by the Knesset, petitions to the Supreme Court may lead it to use its powers to override and reject those laws as unconstitutional. Secondly, the Attorney General may refuse to defend the government laws in the High Court. Thirdly, when the bills are presented to the President for signature (usually just a formality), he may refuse to sign. These two theoretical events have never happened in Israel’s history. There is no precedent nor is there a playbook as to how to resolve such standoffs. It’s unthinkable to expect subsequent violent confrontation in the streets or to suggest that the government might attempt to use the police or the army to force the issue. This would be disastrous for Israel.

*   *   *

We can only hope and pray that between the protests in the streets, the international pressure and the push back by economic and business interests, good sense will finally prevail and the crisis and chaos that are possible will be avoided by adoption of a consensual process of legislation.

It is my fervent wish that out of the mayhem, this constitutional crisis will bring the different people who make up the mosaic of Israeli society closer together, enrich society in Israel, and  enable Israel to truly “become a light unto the nations”.

[1] https://www.democracymatrix.com/ranking

[2] The role of the President is largely ceremonial and symbolic. The President signs all new laws enacted in the Knesset, accredits ambassadors on behalf of the country, and signs agreements and treaties, and appoints judges, based on recommendations by the government, but cannot make any changes or veto these actions.

[3] Or defeat of the state budget

[4] Last April, the Guttman Center for Public Opinion and Policy Research conducted a survey to examine what the public’s stance was with regard to judicial reforms. The survey found that 65% of the Israeli public believed that if the Supreme Court is denied the capacity to strike down laws enacted by the Knesset, there will be no checks on the government, and it will thus have unlimited power. Moreover, 59% of the Israeli public believed then that the proposed Override Clause will increase the risk of political corruption.

According to a new survey released on March 1, by the Israel Democracy Institute, 66% of Israelis believe the High Court should have the power to strike down laws that are incompatible with the quasi-constitutional Basic Laws, a central tenet of the government’s judicial plan. The survey also found that 63% of Israelis think the Judicial Selection Committee should maintain its balance between justices and politicians, who must reach agreement on judicial appointments. The government’s proposed legislation would give politicians control over the committee.