Every Democratic System Needs Moderation and Balance
The following are the opening remarks by President Reuven Rivlin, IDI Honorary Chair and Joan and Irwin Jacobs Distinguished Fellow, at the special #FixIt_Don'tDestroyIt conference on the implications of the proposed judicial reforms.
I would like to begin by thanking the Israel Democracy Institute and all the participants who have come to today’s important conference which focuses on the very roots of Israeli democracy. Exactly two decades ago, in May 2003, when I was Speaker of the Knesset, and after the Tel Aviv Magistrate’s Court had struck down a law passed by the Knesset, I stood before one of the giants of Israeli jurisprudence, my teacher and my mentor, Aharon Barak, and warned that his declaration of a constitutional revolution could be interpreted as a coup.
In a speech I delivered at an event held at this Institute, I said that “All the rules were broken a few weeks ago. The ‘constitutional revolution’ was in fact (perhaps unwittingly and unintentionally) a coup d’état that is endangering the most sacred foundations of Israeli democracy.”
A bit later, I explained that a revolution takes place "bottom-up" as a popular uprising that moves up to influence the elite. By contrast, in a judicial coup, it is the elite who decides to turn things upside down. The attacks on me were not long in coming. I was the enemy of the court, the enemy of democracy.
But I was not deterred. On the basis of conversations with friends, jurists, Knesset members, ministers, and others, I reached the conclusion that there was an urgent need to regulate the relations between the legislative branch (the Knesset) and the judicial branch, in a specific Basic Law.
There was general agreement that the continuation of the current situation would be devastating.
Devastating for the Knesset, the legislative branch, whose status as the representative of the sovereign—the people—is not defined or regulated.
Devastating e for the judicial branch, and especially the Supreme Court, which finds itself, time after time, at the eye of the storm. Nevertheless, despite the clear need to define the relations between the two branches, every attempt in that direction ran into fierce opposition.
About a decade after those remarks, in 2012, the Justice Minister at the time, the late Yaakov Neeman, published a memorandum for a Basic Law: Legislation, and it too ran into heavy opposition.
Only minutes after the memorandum was released, energetic legal affairs reporters and columnists were already calling it a “High Court Bypass Law.” Even before anyone had bothered to read the text, the camps had already been formed.
“A plot against democracy” is how the release of the memorandum for a Basic Law: Legislation, was referred to. It was framed in terms of the champions of democracy and loyalists of the rule of law versus those who would put an end to democracy.
On the other side, too, there were those who made every effort to block the law. They preferred for the clash between the Supreme Court and the Knesset to continue. They believed that their political power would grow as they persuaded the public that the High Court is the enemy of the people. They did this so that they would eventually be able to propose their own law – much more radical and brutal in the way it relates to the Supreme Court.
Others didn’t bother to make a significant effort to exert their influence in order to mediate and find the correct path. But despite the attacks, from left and right, I never gave up my attempt to work towards a balanced formula, a compromise. As Speaker of the Eighteenth Knesset, I initiated meetings with the former Presidents of the Supreme Court, the late Justice Shamgar and Justice Barak, and with others, with the idea of working with them on reaching agreements.
The blueprint I proposed at that time would have granted retroactive protection to the existing Basic Laws, such that any change to them would involve a long and complex process requiring four readings in the Knesset and a majority of 65 at the end of the transition period, and on condition that there not be more than 50 votes against. The law would have recognized the authority of the Supreme Court, as the representative of substantive democracy, to strike down Knesset legislation. It also proposed an "override mechanism” that would permit the Knesset to re-enact a law that had been struck down by the Court.
The principle according to which the decision of the majority to accept judicial oversight, via legislation and by consensus, while reserving to itself a limited ability to re-enact essential laws, has the potential to create the proper balance. I believed then that even if the Knesset and the Court continued to disagree after passage of the Basic Law: Legislation, they would do so with the full understanding that compromise and consensus are the high road of democratic balance. Crisis politics would have yielded to politics of fierce discussion and debate, but conducted under clear rules.
The early end of the Eighteenth Knesset and new elections shuffled the deck. The law that would have been a fair and balanced arrangement disappeared from the agenda. The opponents won—and the State of Israel lost.
Today, we are witnessing the backswing of the historic pendulum. Winds of a second revolution or coup are blowing. This time, however, the majority is the sole ruler.
I have said it in the past, and will do so again today: There is a huge difference between a responsible and brave attempt, even after years, to fill the breach in the relations between the legislative and judicial branches, to define the boundaries of judicial review, to raise questions about the appointments mechanism, to seek a bench that is more diverse and representative—and the attempt to intimidate the Court, to weaken it as an institution, and to invite the public to challenge its authority and decisions.
There is no democratic system that does not require modifications and a balance between the branches of government. But the cluster of initiatives that propose override instead of balance; the spin of transferring the appointment of judges to the Knesset, following a public hearing; and the idea of turning ministry legal advisors into political appointees—these ideas are not interested in balance. Each of them deserves serious discussion. The problem lies, in part, in the rhetoric and tone, in the unacceptable atmosphere, which reeks of vindictiveness and a settling of accounts. They cross clear lines, from objective and respectful criticism of the court, to denying its very legitimacy.
Moreover, “governability” is not the end-all and be-all. The concentration of power in the political system in the name of a supreme principle of “governability,” is extremely dangerous. Indeed, challenges to governability have faced the work of Israeli governments since the establishment of the state. Governability—meaning the authorities’ ability to implement their plans, to advance an agenda and policy that coincides with their view—is not absolute in any democratic system.
The constant tension between oversight and balance on the one hand, and the effectiveness of the executive branch’s activities, on the other, is one of the hallmarks of every democracy.
I call on the members of the coalition—you were elected to govern. You have four years ahead of you. We need reform. We need repair. Not revenge. We need to repair, and to repair correctly. If the pendulum swings too far, the counter-reaction will certainly come. Changes in the constitutional and democratic structure must be made intelligently, and in ongoing dialogue with the public—not in haste, and not to please political bodies that do not represent a majority of the people.
Changes in the rules of the democratic game must not be weapons wielded by extremist forces in Israeli society.
The Government has a responsibility to make changes with a broad consensus, while conducting a dialogue with all parts of society, and with an effort to increase public trust.
I would remind the justices of something that Meir Shamgar wrote: “If changes in the powers of the Court come up for discussion, it is not the Court that will defend itself. If the Knesset enacts changes, the Court will have no choice but to accept the new situation. It is public opinion that will defend the court. Public opinion is one of the ramparts that secure the court’s ability to operate.”
That is what he said.
Honorable justices, I believe that public opinion is on your side. The citizens of Israel, despite their criticisms, are proud of their judicial system and proud of their Supreme Court, as a source of moderation and a broad perspective. They want repair, not destruction. They want an improvement in the judicial system, in its diversity and transparency. They support you and stand by you, knowing that when it comes to judgments, there is no authority superior to those who hold the power of judgment, other than the authority of the law itself.