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Paul Gross

Israel’s patriotic pro-democracy movement won the first round

I’ll start with the good news about the new proposal for judicial reform put forward by Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar. It represents a real victory for the pro-democracy protest movement.

It is less far-reaching than the blatant attempt to establish a Hungary-style illiberal regime – Levin’s original plan. That set of proposals – which included not just changing the way judges are appointed, but replacing independent legal advisors with political appointees, and preventing the Supreme Court from reviewing unconstitutional legislation – was designed to remove any real checks and balances on the power of the government (in American parlance, the executive branch).

Perhaps most significantly, even if passed, this new reform will not be implemented until after the next election. This means that the Israeli public will have the opportunity to vote in a different coalition that will replace the Levin-Saar proposal with one that genuinely addresses the dysfunctional system of checks-and-balances in our system, while protecting civil rights. It also means that the single greatest threat to our democracy, that the government could neuter the Supreme Court and pass legislation affecting free elections, seems to have passed.

Make no mistake, without the extraordinary sustained protests by hundreds of thousands of Israelis, by the time October 7 changed all of our lives, Israel would have already had a government able to act without limits or restraints; with the ability to close down media outlets that opposed it, and even prevent political parties from running. As I wrote in a recent essay lauding Israel’s unique blend of liberalism and patriotism:

The response of Israelis to this unprecedented threat was itself unprecedented. In no other country where liberal democracy was on the line from a populist government had the public risen in protest in such numbers, with so much determination, and with so much national pride….

Even now, coalition MKs are advancing bills designed to put a thumb on the scales at the next election. But assuming the Levin-Sa’ar announcement signals the end of attempts to weaken the Supreme Court in this Knesset session, these authoritarian moves can be blocked by the Court.

Those of us involved in the protest movement can feel proud of what we achieved.

Proud, but not not complacent. Because if Levin and Sa’ar’s “compromise” reform is passed into law, there is serious cause for concern that true judicial independence will be a thing of the past.

As Jeremy Sharon explained in an excellent analysis piece on this site, the heart of the new proposal is a dramatic change to the way judges are appointed:

..the coalition and opposition [would] select one attorney each to serve on the panel instead of the Israel Bar Association selecting two of its representatives.

Critically, appointments to the Supreme Court could be made without the vote of any of the three judges on the committee, whereas the current system guarantees a veto over those appointments to both the judiciary and the coalition representatives.

In other words, whereas currently, no judge can be appointed to the Supreme Court without the votes of both politicians and judges, this change would simply require the politicians plus one lawyer hand-picked by the politicians to vote in favor. This will inevitably result in a politicized judiciary. In any liberal democracy, the judicial branch is supposed to be a check on the power of the executive and the legislature. According to this proposal, the judges will be chosen by the very people they will need to check.

The Bar Association is part of the judicial appointments committee because it represents ordinary lawyers. It can weigh in on whether candidates – to put it bluntly – know their stuff. To determine if they will actually make good judges. Replacing the two representatives of the Bar with lawyers chosen by politicians means that the judges appointed will be the most partisan.

We currently have a Prime Minister on criminal trial. His predecessor as Prime Minister, other ministers, and a President have been sentenced to prison in the past 30 years. Imagine if the judges presiding over those cases had been appointed according to this new system.

I can already hear a couple of pushbacks:

  1. “You say ‘politicians’ but this proposal explicitly says that one of the votes for a judge has to be from the opposition. The government won’t be able to push through a judge that the opposition objects to.”

True, but the devil is in the detail. An opposition MK could be from a party which shares the government’s position on many issues. During the tenure of a previous Netanyahu-led coalition, the opposition MK on the appointments committee was from a far-right party! (These were the days before Bibi brought the most extreme parties into his coalition.)

2. “Even if a politicized judiciary is not ideal, it’s necessary because the Supreme Court is so left-wing and the current appointments process makes it impossible to elect right-wing judges.”

If you believe this, you’ve spent too much time in the Bibi-ist echo chamber. Today’s Supreme Court bench contains at least six, arguably seven, justices who would be considered right-wing by any definition that makes sense in the Israeli context—except by the new definition introduced by the government: “right-wing” means supporting Netanyahu. And because the appointment system is designed to ensure that neither the judiciary nor elected politicians can ignore the opinions of the other, compromise is always required. Previous right-wing justice ministers have successfully used the existing system to appoint conservative judges.

The reason so many Israelis believe lies about the judiciary is the hugely successful demonization campaign waged against the Supreme Court for ten years or more by the illiberal right. In addition to the mistaken assumptions mentioned above, there is a widespread belief that the Court wields judicial review as a dictatorial power to quash legislation on a regular basis. In fact, judicial review is exercised sparingly, far less often than in the United States for example. Plenty of controversial pieces of legislation, very unpopular with liberals, have been passed during the last few years. Left-wing and Arab NGOs have brought hundreds of cases to the Court against the government or the IDF. In all but a fraction of cases, the Court has ruled in favor of the state.

Israeli liberal democracy is fragile. We lack a written constitution, a second parliamentary chamber, local or regional governments with any real power. And for the first time in Israeli history, we have a coalition that is – almost in its entirety – openly contemptuous of the idea of checks-and-balances on the majority. (“We are elected by the public; we can change the regime if we want to,” declared Communications Minister Shlomo Karhi recently.) Until a serious attempt is made to build permanent constitutional infrastructure to replace the flimsy scaffolding that currently exists, the Supreme Court is the pillar holding up the entire edifice. It was protected magnificently in the months before October 7, by ordinary Israelis defending democracy in campaigns, demonstrations, and collective action.

May the next election come soon. And may we have the wisdom to elect a new government that ensures we have no need to go the streets again to protect our basic civil rights.

About the Author
Before moving to Israel from the UK, Paul worked at the Embassy of Israel to the UK in the Public Affairs department, and as the Ambassador's speechwriter. He has a Masters degree in Middle East Politics from the University of London. He is currently a Senior Fellow at the Menachem Begin Heritage Center in Jerusalem - though he writes this blog in a personal capacity. He has lectured to a variety of groups on Israeli history and politics and his articles have been published in a variety of media outlets in Israel, the UK, the US and Canada.
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