What lies behind the current protests against the Israeli government’s proposed court reforms? Is it simply a matter of one side versus the other in a divided society, or is there more substance to the outcry?
There have been mass protests in Israel ever since Justice Minister Levin put forward his proposals for legislation that all have a common denominator of dramatically clipping the wings of Israel’s courts system. Among other things, Levin wants to change the composition of the judicial appointments committee to give the government an automatic majority, which means that new judges will basically be political appointees. Another change will deny the courts authority to disqualify laws passed by the Knesset.
What is wrong with the proposed legislation? After all, no one disputes that the government was elected in free and fair elections. In terms of popularity, while the numbers are slightly different, several recent polls found that of those surveyed supporters and opponents of the proposed government policy were both in the mid-40s which demonstrates a swathe of support for the legislation.
Furthermore, even without court intervention, enacting new legislation is difficult, so why not make it easier for a government to do so? And why shouldn’t the government in power have the ultimate say as to who is to be appointed a judge? Since there is already a consensus, including among judges, that the courts could benefit from reforms, why not go ahead with Levin’s proposed legislation?
In a totalitarian regime, neither the opposition nor the courts can prevent implementation of any policy the party in power chooses to promote. Democracies work differently. They maintain a balance of power, a checks and balance approach in which authority is distributed between the government in power, the parliament, and the courts. Parliament provides one safeguard against abuse, as it obliges the government to win enough votes in it to pass and enact any new law. However, when a government has a majority, the opposition parties cannot prevent the government from passing questionable laws. Its influence in parliament is limited to vocal protests.
Aside from public protest, which is only effective if the government voluntarily capitulates, the remaining defense against misuse of power is the courts system, which, in a democracy, has the authority to challenge government decisions and its leaders’ integrity.
But why, for goodness’s sake, should the courts be authorized to block laws passed by a majority government? A pertinent Israeli example why this authority is important, albeit, in exceptional situations, is the case of Aryeh Deri. As leader of Shas, one of the coalition parties forming the present government, he was offered the post of minister of finance, despite having been convicted of bribery, fraud, and breach of trust. It was a double conviction: taking a bribe and then using the money to buy a house and travel abroad; and channeling public money from the ministry of interior to ultra-Orthodox bodies established by Shas. As part of his ongoing plea bargain to reduce his sentence, he purportedly agreed to voluntarily withdraw from engaging in public affairs. Deri, afterwards, denied this agreement and later accepted Netanyahu’s recent offer of a cabinet position.
The government’s decision was recently challenged, and a (still independent) court ruled that, due to the appointment’s unreasonableness and the Shas Chairman’s, plea bargain, that he could not serve as a minister in the coming years. It is fair to assume that had the courts not been independent, and had the judge been a political appointee, that there would have been a conflict between his loyalty to the government and his professional conscience, and as such that his court decision may well have not stood fast against a perceived breach of trust by a public figure. Whether or not the court handled his case as fairly as possible, examples like this lead us to conclude that it is the courts that help keep politicians honest. To press this point, one of the first laws that the new government is trying to pass is the “Deri Law 2” which will overrule the court judgement and allow him to be a senior minister despite the severity of his crimes, his convictions and plea bargain. What makes Netanyahu’s predicament less one dimensional – whether to have a cabinet minister convicted of illegalities and having sat in jail is that when not dealing with subject matter within which he has a personal stake, he has shown a sense of sensibility and reasonableness often lacking in other high-strung ministers in Netanyahu’s government.
The handling of the most recent US presidential election results offers an American example of the importance of a robust legal system. While one may have favored or opposed Trump as president, today, after it has been thoroughly investigated, only a few remaining Republicans and those possessed by wacko conspiracy theories still believe that the American election results were rigged or are significantly inaccurate. Whether they support him or not, they do accept the veracity of Biden’s presidency.
Another salient example of what can happen if a leader has unchecked power to act, is Russia’s disastrous invasion of the Ukraine. As Putin is an authoritarian president in a country where both the political opposition and the courts are powerless, we may assume that no one warned him that the invasion might backfire. Nor is it likely that that anyone bluntly told him how poorly prepared and meagerly equipped the Russian army actually was. Perhaps, had there been some checks and balances within the Russian decision-making process, the Ukrainians, Russians and the rest of the world would have been spared the necessity of dealing today with the ongoing damaging effects of this fiasco.
Politicians and judges deal with accountability in different ways. Politicians – even those known for their probity – are prone to go back on their promises-declarations. How often do we hear of promises that dissipate after the candidate has won the election and faced the realities of the situation? However, unless they break the law, politicians’ accountability is not determined by what they say or write, but rather by the ballot box. If the public is happy with their elected representative’s performance, they will elect him / her again, regardless of whatever promises he / she has or has not kept. Deri, who continues to be popular among his supporters, is a notable example. Moreover, in Israel at least, rational dialogue and debate have in recent years faded from the political landscape. A politician criticized by the opposition often prefers to delegitimize his critic rather than address the arguments raised. This, certainly, has been Levin’s main tactic, and he has done little if anything to promote informed discussion of his reform.
On the other hand, while there is room for individual latitude, judges are expected to make decisions grounded in legal rules and precedents. They are obliged to explain their rulings both verbally and in writing and are held accountable on the basis of their written opinions and judgments. In the case of Deri, we would hope and expect that the judges were guided not by their personal view of Deri, Shas or Netanyahu’s government, but rather by whether or not Deri’s acceptance of a cabinet position contradicted principles of ethical conduct and legality.
The Israeli justice system has an excellent worldwide reputation as an independent judiciary. This well-earned stature has amplified importance for a country like Israel whose political decisions and very legitimacy are perceived by many around the world as controversial and not inalienable. Levin’s proposed legislation is unfortunately likely to undermine this bulwark.
That being said, both sides of the political spectrum agree that the courts are in need of reform. But neither those within the legal system nor those opposing the new legislation believe that ramrodding legislation that will just enfeeble the courts and undermine their authority is the right way to address the problem. On the other hand, as President Herzog remarked in his address to the Israeli public, one of the points of consensus is that the courts are understaffed. He backed his assertion with OECD statistics demonstrating that the ratio of judges to population is lower in Israel than in many OECD countries. Despite this consensus, it is disturbing to note that Justice Minister Levin’s so called comprehensive plan to reform and improve the justice system does not include reducing the judges’ workload. His insistence that he thoroughly studied the Israeli justice system before formulating his reform program may lead one to surmise that this omission was deliberate. One disquieting explanation is, what easier way could there be to weaken the justice system than entrenching impossible work pressure on judges?
Another point of concern is the speed with which Levin is attempting to implement his reform. His seat as justice minister was barely warm when he launched his policy changes. Why the rush? Why not first take a good look at the justice department from the inside and become familiar with its routines and the people working there, before embarking on a change? Two discouraging possible explanations come to mind. The first is what may be termed the “Ben-Gvir rash browbeating approach”: As security minister, Ben-Gvir, another cabinet minister, is behaving as though security provision in Israel were a straightforward affair, that his predecessors were incompetent, and as though he already knows better than the police how best to handle security issues both tactically and strategically, with no need for pause or discussion. Justice Minister Levin appears to conduct himself in a similar fashion in the Justice realm.
A common denominator in their two approaches is to put promoting their ideological agenda ahead of provision of good governance. Even many of those who agree with their agenda are expressing consternation that Levin and Ben Gvir are relegating good governance to the margins.
It should be noted that unlike Levin and Ben Gvir, not all of Netanyahu’s ministers are behaving with hasty bluster. As an example, foreign minister Cohen has unostentatiously pursued both an approach of maintaining and advancing previous government’s policies, for example, in the Emirates and Saudi Arabia, while pursuing a new policy of public support by visiting the Ukraine and meeting with President Zelensky. In fact, it appears as if he has made this shift of support towards the Ukraine without arousing the ire of Russia, which is no small feat.
Promoting drastic political change is a dangerous double-edged sword. On the one hand, existing institutions may well merit reform, and those entrenched in the system may well resist change, even if it is for the better. On the other hand, who is to say that the reformer’s plan will improve the situation? After all, it is easier to destroy what is, than replace it effectively with something better. A workaround for dealing with the conundrum of effectively bringing about change in a democracy is to implement it properly and pluralistically. First, learn how things are run from the inside. Foster discussion with many, including those with opposing views. After having pondered the merits and insights of all, only then decide what changes are deserving, and how best to bring them around. Not only can the reformer then become wiser, but also, they may discern in the process that their original goal can benefit from refinement. This approach can only work effectively when the reformer is not singularly obsessed with attaining their predetermined goal, but also considers other opinions and respects the importance of the manner in which the goal is attained. Both Ben-Gvir and Levin might benefit from a dollop of unpretentiousness and humility in that regard.
Unfortunately, there is another possible, disconcerting explanation for Levin’s rush. If you are in a hurry because your prime minister is awaiting trial and facing possible imprisonment, and your coalition partner’s appointment to the cabinet is being held back by the courts’ backbone, then speed is of the essence, and the courts must be weakened as much and as soon as possible.
One of the potential weaknesses of democracies is that an elected government can pass laws which cancel the very institutions which make them democratic. Hungary is an example where Prime Minister Orbán’s has been curtailing press freedom, eroding its judicial independence, and undermining its multi-party democracy. Is that where the present Israeli government is heading?
Not all the current protests stem from the polarized division within Israeli society. Some of the protesters are generally supportive of the parties now in power. However, like the protesters of differing political views, and those with an apolitical stance, many are genuinely concerned and downright fearful that the government is conducting itself in a reckless and foolhardy manner. Their consternation has been illustrated by the diversity and apolitical nature of many of the protests and protesters, who come from all walks of Israeli life, many of whom are leaders in their various fields. My late father used to say: “If two people tell you that you are drunk, go and lie down.” The State of Israel, which has overcome innumerable problems in its brief history, may well be at an inflection point. Let us hope that the government sobers up, puts good governance ahead of ideology, respects pluralism, addresses the concerns underlying the protests and practices some humility.