On judicial reform (again, and who knows, hopefully for the last time…)

After writing much more in this blog than I could ever have imagined on politics, a subject I intensely loathe (even though I majored in it, worked in it, and deal with it all the time in my work), as the national divisiveness competition seems set today to resume, here is a summary of my views, as a somewhat iconoclastic religious Zionist, on the judicial reform debate, with a forlorn prayer that this subject quickly becomes obsolete and I don’t have to write about it again.

Firstly, this seems so obvious to say, but existential questions must come first. Torah tells us, in the first of this week’s double parshiot, that our mitzvot are ‘to live by’, and not, G-d forbid, to die by. Moreover, without a State of Israel, G-d forbid, the scope for performance of the mitzvot, and particularly some of the mitzvot we religious zionists hold most dear, would drastically reduce. Therefore, the preservation and strengthening of the Jewish state should be everyone’s top priority by a big margin, religious and non-religious alike. However, this government has embarked on a process which has recklessly endangered the country, and has pushed forward even as that danger became ever more apparent, in a shameless display of brinkmanship. Even in the last few days, as coalition representatives intoned messages emphasizing unity at our sacred national commemorations, they were at the same time busy drumming up participation in a new mass rally which will only deepen division and exacerbate the danger. Israel, it seems, is now significantly weaker than it was four months ago, militarily, economically and socially, and its standing in the eyes of the world is lower (and it could have been worse).

Secondly, and linked to the first, ahavat Yisrael (loving our fellow), and achdut Yisrael (Jewish unity), are our cardinal values, as the second of this week’s parshiot make clear. In this light, shame on this government (I hereby have intent to fulfil the mitzvah of ‘rebuking your fellow’, but without hating any of my sisters or brothers in my heart). Many of its underlying causes, including the need for judicial reform are, in my view, righteous. However, the government has deliberately chosen the most confrontational and divisive possible way to move forward with judicial reform. And why? We, as the religious zionist community, should count our blessings. In 2,000 years, the Jewish people have never come close to studying as much Torah and fulfilling so many mitzvot as we do today, free in our Land. Instead, the opposition to Torah and mitzvot among the non-observant Jewish population is now growing, and the contempt for the religious, and conversely the contempt of the religious for the non-religious, is rising. I am outraged particularly by the thought that things could have been so very much different.

Thirdly, stripping away the vile politics that surround judicial reform, the question remains, what should be done. It seems to me there are genuine principles at stake from both sides.

On the one hand, it is legitimate to question the scope of powers, representativeness, accountability and transparency of Israel’s judiciary as currently structured. There seems to be deficits in all four areas that need addressing. Moreover, the indirect basis for defining and applying civil rights law on the basis of derived rights, which in turn give scope to opinions that can seem inherently anti-religious and even sometimes anti-zionist in nature, is a weakness that requires urgent rectification. With these factors in mind, it is a legitimate concern among religious and traditional communities that the judiciary holds a bias against them, and that it has too much scope to act on this bias.

On the other hand, there are corrupt and self-serving politicians. Here, I am not talking specifically about the coalition but in fact about every politician everywhere. Every politician can be corrupted – it is the nature of politics. ‘Power corrupts and absolute power corrupts absolutely’, so said Lord Acton, so says political theory, and, more importantly, so says Tenakh through messages I have noted in previous blogposts. As religious zionists, or as religious people more broadly, we should not think that religious politicians from religious parties are immune (let us take note from Tenakh about the children of Eli HaKohen and the children of Shmuel HaNavi). All of the legitimate concerns about the current structure of the judiciary should not end up in giving politicians more power and less accountability than they already have, which is exactly what the coalition’s judicial reforms sought to do. It will be abused, and we will all lose as a result, G-d forbid.

This factor, more than anything else, is the reason why the mass protests against this government’s judicial reform cannot be characterised as ‘left-wing’ or ‘anarchist’ – the whole of society, of whatever religious or political persuasion, has a fundamental interest in keeping politics as clean and honest as possible. That is why I am prepared to stand separately from many other religious zionists against the proposed judicial reforms.

Concern about corruption is exacerbated by the elasticity of Israel’s current constitutional (or rather non-constitutional) structure. ‘Basic laws’ can be introduced and amended no differently from ordinary laws, leaving vulnerable the integrity of the electoral process, and allowing a situation in which inadequate checks and balances have been built into the system (the executive tightly controls the legislature, MKs are not accountable to constituents, there is no second chamber, there is no constitution). These too must be addressed.

With all these factors in mind, let us have a simple formulation of what needs to be done that balances the legitimate concerns on all sides of the debate and around which all of Israeli society can rally together.

In so doing, let us reform not just the judiciary, but the wider system of governance, through a consensual process, that leads to the following straightforward outcomes that everyone can understand and agree with:

1. A codification of civil rights that is formally enshrined in law, and thus provides a definitive basis for judicial review of legislative action, as opposed to the current reliance on derived rights.

2. The representativeness of the judiciary, that it should reflect the makeup of Israel’s society and values, is established as an equal guiding principle for judicial selection, alongside merit-based factors.

3. Constitutional structure is strengthened to introduce stronger checks and balances, and to increase the accountability and transparency, of all branches of government, with two immediate priorities being differentiation in the legislative process for basic versus ordinary laws  and the transition to a constituency-based electoral system (I am of the opinion that a constitution is a bit of a stretch for now…)

Within this simple formulation, the detail to resolve key issues from all sides of the judicial reform debate can be negotiated, and the nation can get on with fulfilling our distinct Jewish mission.