An analytical look
Under considerable pressure from many political entities in Israel and abroad, Prime Minister Netanyahu had little choice but to put the proposed Judicial Reform on hold.
While carefully selected politicians gather to seek avenues of compromise, this probably is a good time to look at some of the fundamentals of the proposed reform.
First question: Why now?
There is no perfect political system anywhere in the world, neither for basic government principles nor for judicial systems. Whichever paradigm any country implements will appear to be adequate for a while, then will be subject to abuse, leading the electors to seek a correction or reform. Any country currently under a majority voting system yearns for the representativity of a proportional system, and all other countries voting under a proportional system pray for the stability inherent to the majority system.
As a perfect illustration of the instability of the proportional system, Israel had to conduct 4 unconclusive votes between April 2019 and November 2022 when coalitions had to be formed between unnatural partners and ultimately imploded. Then came the election of November 1, 2022. The coalition led by Benjamin Netanyahu was able to obtain a comfortable majority made of mostly like-minded parties with somewhat comparable vision for the future of the country. For the first time in many years, Israel finds itself with a democratically elected and hopefully stable majority, therefore managing a “tour de force”: combining the stability of the majority system and the representativity (within its electorate) of the proportional system. What better time to legislate and implement serious reforms?
The fact that the current government was going to conduct such a reform was known to all, written in agreements signed between Likud and its coalition partners, and also in the (then) incoming government’s published guideline principles. This coalition was democratically elected on these principles and garnered a significant majority of the popular vote. This is Democracy in action.
The opposition did not quite see it that way. A patchwork collection of leftist parties like Meretz, the Israeli communist party, other parties who were previously leading the country but who had lost that election, the high tech community from investors to employees, and many others mostly out of the secular world gathered allegedly because of their opposition to the reform. They claim this reform is going to kill Israel democracy, ruin its economy and turn its prime minister into a dictator. In my own humble opinion, these demonstrators, knowingly or unknowingly are playing to a different sheet music. Whatever happens to this reform in the future: postponement, cancelation, negotiation, they will not stop their protests and actions until Netanyahu is pushed out of power and they come back into it. G.d forbid, we even see on recent protest signs, the call for physical harm onto the Prime Minister and various members of the Government or of the Knesset.
On the process of nominating the Justices
To start with, let us just say that I find Biden, Macron and many of the foreign leaders that dare to voice an opinion on this Judicial Reform to be of extreme bad faith on this particular issue.
According to a 2019 study by the Kohelet Policy Forum, of the 37 OECD member states, Israel finds itself in the dubious company of Turkey, Greece, and Colombia as the only countries which have their supreme courts nominated by non-elected officials.
Biden conveniently forgets that his own supreme court is nominated by the President (himself) and confirmed by the democratically elected Senate. But Israel is always held to a different standard, true?
Same with Macron whose Court Constitutionnelle is also nominated then elected by a combination of elected officials. And to add a spicy twist to Macron’s position vis a vis Israel, here is what he said to the press a few days ago when confronted with considerable crowd violence in opposition to his proposed retirement reform: “No one should pay attention to the crowd (“la foule”) for it has no legitimacy. Legitimacy only resides with elected representatives.” At the same time, Macron is advising Prime Minister Netanyahu to ignore the Knesset and to listen to the crowd. But again, Israel is always held to a different standard, true?
In Israel, even though elected officials in theory have a voice on the nomination process, various judicial bodies including the Supreme Court itself have a preponderant say and do nominate clones of themselves embracing a similar ideology. This has been often referred to in Israel as “buddies nominating buddies.” And this has led to a very “left” leaning Supreme Court.
In summary, the proposed nomination process is a huge step towards improving the democratic nature of the judicial instances. It will grant the Court a representativity it does not have today by allowing the citizens of Israel through their elected representatives to have a majority voice in the composition of the Court. In doing so, Israel will rejoin a host of developed nations, some of them beacons of democracy, who all pride themselves in having a leadership made effective, responsible and independent by a real separation of power and flawless democratic principles. It takes a particularly bad faith or a total lack of understanding to pretend, as we hear in the streets and from the mouth of certain political figures, that this will lead to a destruction of the Israeli Democracy.
Will this be enough to turn the current flawed judicial into a perfect one? Not quite.
In an upcoming blog, we will look at one other very important aspect of the 2023 Proposed Judicial Reform: the redefinition of the scope of action of the Supreme Court.
May all of us in Israel and the Diaspora enjoy a peaceful, joyful and healthy Pessa’h.