Opposition to Judicial Overhaul Must Put a Reasonable Alternative on the Table

Since Israel’s Minister of Justice Yariv Levin (Likud) announced a judicial “revolution” a couple of weeks ago, it has received an enormous amount of criticism from across the spectrum, not to mention demonstrations in Israel with upwards of 100,000 protestors.

Much of this criticism is well founded. The complete overhaul of the judicial system laid down by Levin would effectively mean the elimination of checks and balances on the government’s power, and the abrogation of the separation of powers in the Israeli system of government.

Without a constitution, and with a Knesset where the government has an automatic majority, the reality that will emerge would leave no institution to protect the rights and freedoms of the citizens of Israel. Simply put: the government will be able to crush freedom of expression, freedom of conscience or the equality before the law of every citizen without restraint. Israeli democracy will decline.

But simply yelling about it won’t help.

Those who oppose this plan – and these include vast publics from both the left and the right in Israel – should issue their own proposal for a reform in the Israeli judicial system.

First, because the system does need reform, but as an evolution, not a revolution. It is necessary at the very least to establish the rules of the game, which are not fixed by law at the moment. Does the Supreme Court have the power to overturn laws? If so, under what conditions?

We need to acknowledge that several decades ago, Justice Aharon Barak instituted a judicial revolution of his own when he used the legislation of Israel’s Basic Laws as a constitution-in-making. On the one hand, this revolution strengthened Israeli democracy and promoted the human and civil rights of all of us – men, women, minorities. But on the other, regardless of where one sits politically, one can understand why the Knesset would want to criticize this abrogation of power and regulate it. This is not an unreasonable demand.

Second, a counter proposal should be presented because there is currently only one proposal on the table – and it is a bad one. Every section of the Levin plan – a plan that does not have a single renowned jurist who supports it– will crush the separation of powers in Israel and severely dilute its democratic characteristics.

The alternative should define and limit the ability of the court to overrule laws, mark a parliamentarian majority that could reenact such struck-down laws (perhaps of 70 MPs out of 120), specifically prescribe the special status of Israel’s Basic Laws, and ideally set the stage for the establishment of a full-fledged constitution for the state.

If an alternative plan is not presented and if a serious discussion is not held in which the public can hear why such a plan is more balanced, and improves what is needed while not undermining the government’s checks and balances, there will not be an opportunity for the majority of Israelis to seriously engage with the matter, and there will not be a sufficient challenge to the government’s unilateral intent to enact what it wants without being held accountable.

A reaction from the Israeli public has already begun. Not only with mass demonstrations, but with grassroots initiatives that seek to engage the government and enter a debate on the proposed reform. At Kolot, a social change organization where I serve as the academic director, we recently led a series of teachings at the conference of the Israeli Union of Jurists.

Our faculty spoke with its members about the Talmud’s Culture of Controversy, about disagreement and polemic as essential values in the Beit Midrash and the persistent manner in which over the years our Sages were careful to maintain a variety of opinions in the ongoing composition and constitution of the Jewish tradition.

Such initiatives are desperately required at this time. Israel has always been an animated, indeed deeply polemical, society. We have to bring the spirit of thoughtful disagreement to the public sphere. Those who oppose the current government’s plan are not exempted from showing goodwill and seriousness in engaging in learned argument and in bringing our own reasoned proposal to the table.

Without a decent alternative on the communal table, we will continue a food fight rather than start a crucial debate.

Dr. Tomer Persico serves as the Academic Director of Kolot and a Research Fellow at the Hartman Institute.