As we stand at the edge of the abyss – a constitutional crisis literally embodying the idea that “might is right” – the president of Israel decided, this past Wednesday, to place the People’s Framework on the national table. He may lack actual authority, but he acted out of a heroic sense of responsibility worthy of the history books. The framework proposes a constitutional change that answers the main expectations of those seeking to reform the relationship between the branches of government, while fully and uncompromisingly safeguarding the State of Israel’s essential democratic character, as demanded by the hundreds of thousands of demonstrators across the country and, indeed, around the world.
In this framework, neither side subjugates the other, and that is a good thing. The victory of half the people over the other half would amount to a loss for all of us. One should not, therefore, expect the framework to be greeted with shouts of joy by the far ends of the political spectrum. But every Israeli patriot, from the coalition and the opposition alike, must embrace the framework and accept it as the best possible roadmap under the current conditions. If the Israeli mainstream stands behind the framework and if it is legislated by the Knesset, the state will be able to continue to flourish and prosper into the next generation.
The framework, if enacted, will ensure the continued protection of human and minority rights in Israel, as it preserves the independent, non-political DNA of the Israeli judicial system and the legal advice government ministries receive. The framework also proposes enshrining in Basic Law, which carries constitutional weight, the right to equality, freedom of expression and opinion, and freedom of assembly – including the right to protest. These are huge achievements for all those interested in a democratic Israel in the substantive sense.
The framework, if enacted, will modify the balance of powers between Israel’s branches of government. It will reduce the ease with which laws can be struck down by the Supreme Court, but in those cases where a law is indeed nullified, the Knesset will not be able to override the Court’s decision. This is a correct move in the direction of a proper and respectful balance between the legislative and judicial branches.
The framework, if enacted, will codify the rules of the game for the legislation of Basic Laws in Israel. Contrary to the way Israeli governments have acted in recent years, it will not be possible for a simple coalition majority to protect transient interests by anchoring them in Basic Laws and thereby “immunizing” them against judicial review. Basic Laws will be legislated, as required, only with a relatively large Knesset majority, thereby making it possible to ensure that the Supreme Court cannot invalidate them. Here too a correct balance between the two branches is being proposed.
Reconfiguring the Judicial Selection Committee
The central point around which the current public debate revolves is the identity of Israel’s judges – or, more precisely, the identity of the Judicial Selection Committee members empowered to decide who will become judges. Advocates of the proposed reform object to the existing situation in which the three Supreme Court justices who sit on the committee hold veto power that enables them to block appointments they disapprove of – something that has, in fact, happened. By contrast, the reform’s opponents decry the committee’s potential politicization, which would alter the Court’s status and undermine its integrity.
The People’s Framework offers an interim solution: The Judicial Selection Committee will be reconfigured to require a majority of seven of its eleven members for judicial appointments. Three Supreme Court justices will continue to serve on the committee, but they will no longer hold the veto power currently in their hands. Six politicians will serve alongside them: three cabinet ministers, a Knesset member from the coalition and two Knesset members from the opposition. In addition, two public representatives – jurists qualified to serve as Supreme Court justices, will be appointed to the committee by the Minister of Justice and the President of the Supreme Court. Thus, the weight the committee’s politicians carry will be increased, while also enhancing the committee’s professional-legal caliber. Judicial appointments would require consensus between the different groups, thereby ensuring balance and professionalism in the selection of judges.
If the parties to the dispute examine the People’s Framework only in relation to their “dream framework,” they will surely reject it. Instead, they should consider the framework in relation to the realistic alternatives before us. Israel is in a “constitutional moment” which is different and apart from the ordinary moments in the life of a nation. In regular times, political leaders are expected to promote the interests of the political camp that elected them, and “the good” as perceived by that camp. At a constitutional moment such as this, however, our leadership needs to approach its role from the perspective of the overall good.
The only way to escape the impasse, the Israeli stalemate that is drawing us ever closer to the dark abyss of civil war, is for the leaders of the political camps to agree to work for the common interest, as reflected in the People’s Framework. This is the patriotic act required in the face of crisis.