A Needle on the Israeli Compass

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The conservatives who think the court is moved by a malicious intent to stamp out politics are mistaken. Our High Court of Justice is squeaky clean, and of the highest possible caliber

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The new coalition agreement is scheduled to be signed next week. We will then find out whether the recent elections will produce any real change in our national life. Even though coalition agreements are not always carried out, they are extremely important, because they indicate the direction in which the country’s leaders propose to lead us over the next four years.

On the surface, the victory of the political rightwing, with the Likud at its core, demonstrates that Israelis are not interested in seeing any major change in direction on Israel’s current path. The election results are the political reflection of the fact that in 2009, when Benjamin Netanyahu returned to power, the Israeli public was divided in its assessment of the country’s situation into two camps of approximately equal size--- the optimists and the pessimists (35% each, with the rest seeing the picture as “so-so”). But today, after 10 years of Netanyahu governments, 53% are optimistic and only 16% pessimistic (Data is based on surveys conducted by the Guttman Center of the Israel Democracy Institute). The “sourpusses" have become a small minority.

This explains why it is unlikely that the coalition negotiations will produce any change in current security policy, economic agenda, or the situation in the territories. Nevertheless, and even though Israelis voted for more of the same, we are liable to see one momentous change in the next Knesset: a revolution in Israel’s constitutional regime.

The leaks from the coalition talks point to plans to pass an “Override Clause” – legislation which would  allow the Knesset to override Supreme Court rulings, curtail the Court’s power of judicial review of government decisions, politicize the mechanism for appointing judges, change the system for appointing ministries’ legal advisors, and more. The emerging picture is one of a dramatic and historic revamping of the system of checks and balances in Israeli democracy.

Was the coalition granted this mandate by the electorate? Remember that the slogan emblazoned on the campaign flag waved by the outgoing Justice Minister was “Shaked will defeat the High Court; Bennett will defeat Hamas”—and the voters declined to salute. Those who interpret the right-wing’s victory as an indication of the people’s desire for a total overhaul of our constitutional system are mistaken, and are misleading the rest of us.

Even though public confidence in the Supreme Court today (55%) is much lower than in the past (79% in 2004), it remains significantly higher than its trust in the Knesset (30%) and in the political parties (16%). The politicization of the judicial system—if it comes to pass, will hand over the keys to the rule of law precisely to the branch of government in which the public has the least faith. Although we must recognize that disagreement about these issues cuts across Israeli society, the majority prefers the current situation over  any alternative: thus with regard to the override clause (49% against, 45% for) and even more so, with regard to the  system for appointing ministries’ legal advisors (73% opposing a change, only 15% in favor). And so, we may question the public legitimacy of the radical brew being concocted around the negotiating table.

We should not infer from this, however, that the current balance between the judicial and the political is sacrosanct. We should give serious thought to a change of direction on this issue, rather than ignore the growing tide of criticism, by the public and the legal community alike, of the “judicialization” of Israeli society. But the appropriate change must start with exorcising the demons and understanding the motives of both the court and its critics.

The conservatives who think the court is moved by a malicious intent to stamp out politics are mistaken. Our High Court of Justice is squeaky clean, and of the highest possible caliber. When it intervenes in the Israeli Kulturkampf it does so out of patriotism and in order to fulfill its obligation to defend human and minority rights. One may disagree with the Court’s activism, but we must not stand by and watch it being turned into a sort of voodoo doll into which members of the coalition stick pins.

But the liberals who attribute the winds of change exclusively to the wickedness of the coalition, driven by desire to destroy democracy and hamstring its guardians--- are also mistaken. As much as the proposed changes are motivated to serve personal interests (and this, of course, is the elephant in the room) the coalition needs to distance itself from it like the plague. But we must also acknowledge that conservatives, too, have principles, which are perfectly legitimate in and of themselves, about the appropriate division of powers between the branches of government. Similar views can be heard all over the world, including in enlightened countries.

A pluralistic approach to this debate must lead all of us—liberals and conservatives—to conduct a sincere search for a new balance between the political and the judicial, one that takes account of the character of Israeli society and its current and future demographic and cultural trends, but does not injure or offend the other camp’s most precious ideals.

In fact, the very worst way to change the current situation is that which seems to be emerging from the coalition talks: a brutal revolution against the constitution, a revolution that is not fully supported by Israeli majority. Ironically, those complaining about the unfairness of former chief justice Aharon Barak’s constitutional revolution are now seeking to emulate him, in the opposite direction. Should that happen, it would be a tragedy for generations, because battle would continue, Israeli society would be ripped apart and public trust in our institutions would be further eroded. 

Therefore, President Rivlin and Knesset Speaker Edelstein must intervene and propose an effective mechanism for dealing responsibly with the needed constitutional changes. The two men – bona fide right-wingers – are beyond reproach. They should call for a six-month moratorium to permit a careful study of the constitutional issues by experts with different outlooks, and who will propose a balanced constitutional arrangement. This is the only way to point the Israeli compass in the direction to restore broad public trust in the institutions of government.