by Emanuel Shilo, Editor, Besheva Newspaper, translated by Hillel Fendel
1. The weekly anti-judicial reform protests have waned considerably in recent weeks, and it's not only because of the summer heat. Nor can it be attributed solely to a mass exodus to summer vacations abroad, or to the fact that the Knesset is in recess, or to the general tiredness, both physical and ideological, that has overtaken many of the protestors. A more precise reason would be that everyone is anxiously awaiting the results of the petitions against the recently-passed judicial reform outlawing "Not Reasonable" as a reason to nullify a duly-passed Knesset law; these cases are scheduled to be heard by the entire Supreme Court in another ten days or so.
But the most precise reason for the ebbing of the protests is that there is barely anything to protest against! From the large, far-reaching judicial reform package that Justice Minister Yariv Levine presented several months ago, barely any of it is left on the table.
It's true that for the hard core protestors, judicial reform had nothing really to do with the protests in the first place; they wanted nothing less than the toppling of the government, with judicial reform just their excuse. These professional protestors began their demonstrations years ago outside the Balfour St. home of Prime Minister Netanyahu. The main excuse then was the indictments handed down against him. Even before the judges in the case told the prosecutors how weak their bribery case against the prime minister was, the protest leaders quickly pivoted and adopted the judicial reform as their new "main" reason for protest. If judicial reform truly drops from the public eye, a new excuse can be expected to be used – for as long as the government still stands.
But while the hard core can be expected to keep the protests going even for years, these will just be a nuisance, not more. To maintain a long series of genuine country-paralyzing protests, they need hundreds of thousands of people. How were these attained until now? Simple: they came out in droves only because of the lying propaganda that presented the judicial reform legislation as a bona fide drive to turn Israel into a dictatorship. No other excuse would actually get reservists in the Air Force, IDF Intelligence and the like to threaten not to serve. They are basically patriotic Israelis, after all, who agreed to weaken Israel militarily and economically only because they were lied to that Israel's government ministers and Knesset majority are preparing a revolution to overthrow Israel's democracy.
2. There are in fact indications that the nationalist government's plans for genuine judicial reform are waning and ebbing away. For one thing, there are those on the right who see the societal crisis that has developed, and the threats of civil war, as well as the economic and security damage that has resulted – and feel that the government should unfurl a white flag and announce that further judicial reform has been placed on hold. And there are others on the right who agree with them simply because of the cold reality that a Knesset majority to pass additional such legislation is not likely to be found. Still others say there's no point in continuing since in any event the Supreme Court will do as it pleases, including abolishing any judicial changes it doesn't like.
However, to give up now is not a good idea. For one thing, it would mean the perpetuation of the judicial system's many egregious faults and distortions, and this is a high price to pay. In addition, though it can be hoped that ending judicial reform will ensure that the protestors go home and leave us in peace, there is no guarantee that this will happen. After succeeding in thwarting a homogeneous, stable, 64-MK government, why should the coalition of leftists and elites not continue to use the same unconventional weapons to further trample the democratic majority and the government on every issue regarding which it holds a differing opinion? Since it is far from clear that this will not happen, why should we cave in now and possibly motivate them to continue their destructive and non-democratic behavior?
3. It has been reported that Netanyahu intends to pass into law only one more judicial reform: a change in the composition of the Committee for the Selection of Judges, to give the largely left-wing judges less of a decisive say in the appointment of new High Court judges. In this scenario, further changes would be made only in consensus with the opposition.
Allow us to note that if it has been decided to suffice with only one more change, it is far from certain that the most important of the planned reforms is a change in the Committee.
As far as is currently known, the idea of giving the Committee a clear government majority, so that it could fill Supreme Court vacancies as it pleases, is no longer on the table. There are other proposals instead that would simply provide more balance. One idea, which might be the most far-reaching compromise the coalition would be willing to accept, is that the Committee would be comprised of an equal number of members from each of the coalition and the opposition, with no judges or Bar Association members.
Certainly this idea is considerably better than the present situation, in which the government and the coalition have only three representatives out of nine. But still, it is not at all democratic, in that it gives the opposition minority equal power to that of the coalition majority. In any case, this formula is also not expected to pass without a strong fight – for why should Chief Justice Esther Hayut and her colleagues give up their place and power in the committee? If we have to fight, then, why should we not fight for an even better proposal for the nationalist camp, such as having the judges elected in the Knesset Constitution Committee or in the Knesset itself, where the coalition always has a majority?
Another proposal, suggested by former Justice Minister Chaim Ramon, would also be a slight improvement for the right-wing – but very slight. Not for this did we make such a major effort to introduce judicial reform. If it is impossible today to make a major change in the composition of the Committee, it would perhaps be better to wait for a more favorable opportunity rather than to suffice with such a minimum achievement.
4. In any event, many years will pass before a change in the Committee for the Appointment of Judges will actually make a real difference in the High Court's decisions. Even if right now, judges with a Jewish-national outlook would be appointed, years will pass before they amass sufficient seniority to hear important cases. In fact, the composition of the Supreme Court for the coming few years does not look very good for the nationalist camp. Activist judges will control the Court for the coming years, which will continue to chip away at the authority of the government to rule and of the Knesset to legislate. It appears that the only way out is to restore these bodies their original authorities via a general, gradated "overruling clause."
That is, it is hereby proposed as follows: The law must state that if the Supreme Court wishes to hear a case involving the possible overturning of a Knesset law, all 15 of its justices must hear the case, and may overrule the law only if at least 10 justices vote to do so. In such a case, the Knesset can then overrule the overruling with a majority vote of 61 MKs. If 13-14 justices vote to overrule the law, then a special Knesset majority of 65 would be required in order to restore it. And if all 15 High Court justices feel the law must be overturned because it violates a Basic Law, then 80 MKs would be needed to override the overruling and reinstate the Knesset law.
It would seem that if the coalition has the power only to pass one law of judicial reform, the above would be the correct law to pass.