Why I protested – The perspective of a former Australian judge

For about 16 years, I was the only kippah-wearing judicial officer in Australia. As a Jewish judge in a non-Jewish state, I was enormously conscious and proud of what my kippah symbolized – a 3,300 year old tradition which in part represented a religious and constitutional obligation to establish an independent judiciary in order to ensure the success and wellbeing of society. This kippah remained on my head as it accompanied me to the demonstrations outside the Knesset this past Monday, where it carried with it the same weight of responsibility as it did during my judicial service in Australia, however this time in playing my part in an attempt to sway the outcome of the government’s proposed judicial reforms.

To others, the events of life and history may appear random, but, as Jews, we know otherwise. Thus, it was no coincidence that two days before the Constitution, Law and Justice Committee voted in favor of the first part of the proposed judicial reforms, we read in Parshat Yitro that, at the beginning of our journey from slavery to statehood, Moshe accepted his father-in-law’s advice that the wellbeing of society requires an independent judiciary. As Yitro said, this is necessary to ensure that the Jewish People “shall arrive at its destination in peace”.

How then can it be that in the “Jewish and democratic” nation state of the Jewish People, the government proposes to undermine the independence of the judiciary, and thereby imperil our rights and the wellbeing of Israel’s complex society?

There should arguably be consideration given to the formulation of reasonable rules, checks and balances, to regulate the Supreme Court’s jurisdiction to review and set aside Knesset legislation, given that the Barak court assumed this authority without an express conferral of power by the Knesset (and significantly given the absence of a constitution). As President Herzog recognized in his important address to the nation on 12 February 2023, “[the] pain felt by our brothers and sisters [who support the proposed judicial reforms] is real” and “changes [to the court system] can be completely legitimate”. There should also arguably be consideration given to the constitution and operation of the Judicial Appointments Committee, in light of the exceptional position in Israel whereby three current Supreme Court judges can exercise an effective veto on who should replace them. This is because the judiciary should broadly reflect the diversity of the community it serves in order to maintain the confidence of the community, and the current position is likely to result in less diversity in the make-up of the judiciary.

However, these considerations do not justify the radical and anti-democratic judicial reforms that are now proposed. There are three that are particularly problematic: 1) The so-called “judicial override” clause, under which a simple majority in the Knesset can vote to override the Supreme Court’s striking-down of Knesset legislation, 2) The abrogation of judicial review of governmental decisions on the basis of legal unreasonableness or absurdity, and 3) The reconstitution of the Judicial Appointments Committee to give the coalition a majority and consequently the power to dictate all judicial appointments. These changes would collectively create a dictatorship of the coalition, because it would no longer hold just legislative and executive power, but also, in effect, judicial power, and it would be immune from judicial review even if it acts absurdly. The reforms would collectively 1) undermine the character of Israel as a Jewish and democratic state, 2) imperil the rights of individuals and minorities (a status one could argue is collective in some respects to everyone in Israel), 3) adversely affect the economy and lead to a brain drain as both Israeli and foreign companies contemplate relocating to countries that have an effective judicial system, and 4) compromise former and serving IDF soldiers when outside of Israel, who have been shielded from international legal proceedings and sanctions in the past, partly due to the broad international respect and reverence afforded to the Israeli judicial system.

It was for these reasons that I protested outside the Knesset on Monday, holding a sign reading “tzedek tzedek tirdof” (“justice, justice shall you pursue”), while unfortunately the Parliament of the Jewish state voted inside the building to undermine this emphatic injunction given in the Torah.

Nonetheless, I remain hopeful – for two reasons. One is the extraordinary Zionist patriotism of the tens of thousands of fellow protesters, representing citizens from all walks of life, who remain committed to the founders’ vision of a Jewish and democratic state.  They waved the Israeli flag, stood up to sing Hatikva, and chanted “democratia!” in unison.  The second reason – or person – giving me hope is the President of the State of Israel. President Herzog’s five point plan provides a balanced roadmap for addressing the matters of legitimate concern in the Israeli judicial system without impairing the character of Israel as a Jewish and democratic state. Importantly, the President’s plan calls for dialogue and broad consensus in designing the rules, which are essential when considering such fundamental changes to the legal system. It also addresses resourcing and structural issues in the judicial system which governments of all coalition complexions have ignored for years, but as the President perceptively recognizes, must be dealt with to ensure the effective administration of justice.

I sincerely hope that the President’s five point plan succeeds. With good faith, a sensible and balanced outcome on judicial reforms can be readily achieved. This would both put an end to the current toxic debate and ensure the longevity of the reforms. But if that doesn’t happen, I hope to see many more people outside the Knesset during the second reading of the legislation to sway the outcome in that way, conscious and proud of the fact that an independent judiciary is not just our modern legacy and protection, but also our ancient one.