Judicial Reform:  Yes To Herzog, No to The Three Stooges

This is my tenth blog here at the Times of Israel on the judicial reform crisis.  I have felt obliged to weigh in because I have decades of practical and academic experience with constitutional reform in my own country, Canada;  because I often teach in Israel; and because I care profoundly for the peace and well-being of the state of Israel and all of its people and for the embattled remnants of the Jewish people abroad.

I have tried throughout to identify the valid points on both sides of the debate, and to suggest processes to achieve a middle ground,

Let me try to distill here my key conclusions to date.

On process,  President Herzog is setting a precedent that should be followed for constitutional reform in the future. It recognizes that when making law with higher status – constitutional law – a country needs a special, more demanding, more consensual process. All parties in a proposal, including the governing ones, should join with opposition parties in trying to reach such broad agreement,  The President’s office should be the forum for those discussions

In the context of any land-for-peace deals, Minister Levin supported a Knesset law that effectively defines broad agreement as  2/3 support in one Knesset or a yes vote in a national referendum. The Herzog principles offer a third reasonable route:  a reform must be passed by two Knessets in a row, with at least 70 votes in support in the second one. The current government should choose one of those routes. Anything less cannot be portrayed in good faith as the “broad agreement “ that the Israeli public deserves and even Israel’s friends in other capitals have been urging.

The Likud party did not itself address judicial reform in the last election campaign. Yet the proposals it is pushing are in some respects more extreme than those of the Religious Zionist Party, whose platform actually did address the subject.

On substance, President Herzog’s middle-ground set of principles deserves the support of all reasonable people. It addresses the legitimate concerns of the reformist side but preserves the independence and credibility of the court system. It also benefits Israeli society generally by finally putting in place a distinct pathway for advancing and approving constitutional, rather than ordinary, laws.

The Herzog framework, if implemented – possibly one element at a time  – would enable the Coalition to say, with full justification, that it has accomplished anything and everything the judicial reform movement could reasonably expect to achieve. The Coalition should accept “yes” for an answer, rather than threatening extreme measures that would be destructive to Israeli democracy and the standing of Israel in the international community.

Opposition parties should not concede anything further than is already with the parameters of the Herzog proposals. As Tevye says in Fiddle on the Roof, “If I bend any more, I will break.”

Judicial selection should be conducted consistently with the Herzog principles.  The next item scheduled for a Knesset vote is instead what might be called the “three stooges” proposal. (That would be “Shloshet Hamukyonim” in Hebrew). It would enable the  Coalition members or nominees to the judicial selection committee to effectively impose the next two judges of the High Court, plus its president.

Minister Levin has himself admitted that if the governing party could use this process for all future appointments, the High Court could effectively become an extension of the executive. “It would have turned the three branches of government into one,” he admitted in an interview with  Channel 14 in Israel.

It is not acceptable, however,  for even three of the judges to be seen as an extension of the governing party or viewed as such.

It is not acceptable for any judge of the High Court to be viewed as such.

The three members selected in this manner – however genuinely skilled, honourable and independent-minded – would be widely seen as plants of the government due to the appointment process. Who would want to accept an appointment under such circumstances?

And notice something. The Coalition’s program would say that law can only be struck down as unconstitutional if twelve of fifteen High Court judges hearing the case say so.

In other words, as few as four High Court judges could effectively prevent a law from being invalidated. A minority of only four would prevail. How would the Israeli judiciary appear if most of the “ruling minority” on a decision were from the “three stooges” camp”?

I consider it highly probable that the “three stooges” proposal would be struck down by the current High Court. Precedent says that a basic law can only be invalidated if it is a grievous infringement of the founding principles of Israel, including the independence of the judiciary. The “three stooges” proposal really is that egregious. If you have any doubt, consult Minister Levin’s admission to Channel 14,  and follow it to its logical conclusion.

To sum up, the Coalition can say “yes” to the Herzog principles and eventually emerge with legislative achievements that match anything their camp could ever reasonably seek or hope to achieve.

Or the Coalition can press ahead with the “three stooges” initiative and other extreme measures.  The history that would follow will be both farce and tragedy.

The victims would include the same enthusiasts who have pushed  Israel into this peril. Yet they would only be a small part of those who suffer – in Israel and within what is left of Jewish civilization around the world.

Every day that the judicial appointments crisis continues in Israel is seriously and needlessly damaging. The prime Minister can put a stop to it immediately.  So could half a minyan – four or five members of the ruling coalition – who finally stand up and say, clearly and publicly, that they will not be party any further to the current exercise in national self-destruction,  A  positive alternative – the Herzog principles – has been established.  It should be accepted by all key participants, including the Coalition,  at long last, without equivocation and without further delay.