If judicial reform doesn't pass, things will be worse than before - Kohelet head

Walking into the house of Prof. Moshe Koppel, the architect of Israel’s judicial reforms, is a blast from the past. On the left-hand side of the entrance to his house in Efrat, a settlement in Gush Etzion, there is a yellow sign from a Gush Katif bus stop that was taken down during the 2005 Disengagement from Gaza.

The sign mentions names of settlements that no longer exist, and an orange ribbon, the symbol of the dramatic right-wing demonstrations against the pullout, is tied onto it, blowing in the winter wind.

This sign symbolizes what convinced Koppel, as well as many other politicians and conservative leaders, to promote many reforms and changes in Israeli society. For him, one of the main issues was the judicial system that he felt violated human rights in 2005. That is when this math professor who made aliyah from the US decided to make it his life mission to change Israel for what he saw as the good; others would obviously disagree.

“Ten thousand people were kicked out of their homes,” he said of the Disengagement, in an exclusive interview to The Jerusalem Post on Wednesday. “That sounds like a human rights story,” he continued. “It sounds like a minority that was definitely treated badly by the government, and not only did the Supreme Court hardly weigh in on it, kids were arrested for demonstrating; buses were stopped in Kiryat Shmona in the North and people who were on their way to demonstrate were detained. Where was the Supreme Court then?” Koppel asked.

Koppel is a professor of computer science at Bar-Ilan University and is founding chairman of Kohelet, Israel’s leading conservative-libertarian think tank. Kohelet, established 11 years ago by Koppel and others, is the organization behind many laws and regulations in Israel in recent years, most notably at the moment is the judicial reform.

While sitting down at his dining room table, Koppel shared with the Post that he’s been through a roller coaster in the past few months: “The truth is I’ve had better days,” he said. “I don’t mind controversy. I don’t mind promoting something that I think is right. But I discovered that in the press, especially in Haaretz and its associated publications, there’s a character called Moshe Koppel who’s not me,” he smiled and laughed bitterly.

Koppel, probably one of the smartest people in Israel, is a calm and sensitive human being – very different from the way he is portrayed in Haaretz and The Marker in the past few years in hundreds of articles, profiles and investigations into his work at Kohelet.

“I try to be a thoughtful, considerate person, where I promote issues based on serious analysis and what I think are reasonable conclusions, but there’s this demonic character in the press who is extreme, who is reckless, and I just don’t recognize that person,” he said sadly.

Koppel is worried about the situation

Regarding the current situation, Koppel is worried. “This has become a very high-stakes issue. I don’t think it needed to, and it’s not obvious how it’s going to end. There’s a lot of bad endings. So, of course, it causes me a lot of anxiety. I really want to get the matter settled, ideally with a compromise that would give us the important parts of the reform, so that things would change here for the better in terms of the balances among the branches of government.

“I fear that it could end with either the whole thing collapsing, in which case things would be worse than they were before, because then the powers [of the] pro-judicial people would feel energized, and the people who feel that they’re not represented by the court would be even further alienated; feel like the whole political system is rigged,” Koppel said with a very serious and worried expression. He said that if the reform collapses, then those who supported it, which is what he sees as a majority of Israelis, will feel that “there’s really no point in participating in the whole democratic process, because in the end, the courts are just going to do whatever they want anyway.”

He added that another scenario is that the reform will pass with 64 votes of the coalition members, and in that situation “it could end with 64 MKs ramming through the reform, the way it initially was [the intention of the heads of the coalition to vote on all of the reforms within a few weeks, before the Passover break], and then either we reach a constitutional crisis – because the court, without actually having the authority to do so, would nevertheless strike it down, and then we’re at loggerheads – or with the protests escalating and causing economic and possible security harm.”

Koppel mentioned the different suggested reforms and explained them. “First of all, the reform comes and says the attorney-general is not the boss of the government. The attorney-general is the lawyer of the government who gives the government legal advice services, which they would be well advised to listen to, but they are not bound by it; and when the government chooses its lawyer to represent them in court, then they do not have to take the attorney-general as their lawyer. They can take somebody else, and particularly when the attorney-general is not going to defend them,” he said, giving an example of former attorney-general Dorit Beinisch who represented the late prime minister Yitzhak Rabin’s government in the High Court, but wouldn't defend his position.

He continued, saying that “the principle will be that [the court] can strike [a law] down, but you need to sit on the full bench of 15 judges. In the US, during every case, all nine Supreme Court justices sit [in a similar hearing], but in Israel, you can have as few as three sitting on a panel, and the chief justice chooses the panel, so that you can actually manipulate the results.” Koppel revealed that the politicians who are negotiating the reform are “haggling about what the special majority would be. The numbers are running between 10 and 12 out of 15.”

INTERESTINGLY, KOPPEL and his team are against the override clause, meaning that the Knesset would be able to override a Supreme Court decision with a simple majority of 61 votes out of the 120 in the Knesset. Currently, the Supreme Court can strike down any law it finds to be unconstitutional.

“We thought that this was a bad idea,” he said. “We were opposed to this from the start. There should not have been an override clause, not at 61 and not at some other numbers at all.”

Asked to explain why he was against this reform, he explained that “first of all, you pay the highest price for it politically because it’s the thing that scares people most. I understand why it’s scary. And you actually get the least for it; all you’re doing is encouraging the court to strike down more [laws].... All we do is cause more tension between the branches of government.”

Regarding the selection committee of judges, Koppel said that it is “a catastrophe the way it is now.” The current committee has nine members. Three of them are sitting justices; two of them are members of the [Israel] Bar Association, “which seems to be unable to avoid Me Too scandals,” Koppel added as a side note. “They [the judges] already have a majority, five out of nine, but they don’t even need that majority, because the fact is that you need seven out of nine to pass as a Supreme Court justice. They have a bloc of three already that can prevent it. So they have a veto.”

Koppel explained that the fact of the matter is that “because the court is very homogeneous in a particular way – namely, secular Ashkenazi left – other people kind of feel that the court doesn’t represent them, doesn’t hear them, doesn’t understand them.

“The fact of the matter is that when you have a system in which the people who are already there have a veto over who joins them, it’s always going to pull in the direction of homogeneity; they’re always going to look the same.”

The reforms suggest that the two representatives from the Bar should be replaced by two “public representatives” chosen by the justice minister and de facto giving the government a majority for selecting judges.

Koppel suggested for instance decreasing the number of judges on the committee in order to allow more representatives from the opposition on the committee and change the number of members to 11.

What this conservative professor feels is that this is a fight with what he sees as the left elite of the country which isn’t happy with any changes to its amount of power and influence.

“The Left or [rather] the opposition discovered that this thing had hit a nerve, that it is much bigger than the issue of judicial reform itself,” Koppel explained.

“Let’s face it, there are different communities in Israel: There’s a community that’s secular, left-wing. They’re what’s called vatikim [veterans]; they came to the country a long time [ago], and they sit in positions of power. And for them, this system is working just fine.

“All of a sudden, it is like this coalition of ragtag outsiders won the election, right? So you’ve got settlers, Mizrahim [Jews from the Middle East and North Africa], and this whole ragtag band of outsiders who don’t sit in the real sectors of power in the country – they won, and they actually want to make that win real. They’re talking about how they’re going to change the system. And this secular Left, feels like, okay, this is our country; you guys are only here at our sufferance.”

Asked why he himself is an outsider, when the Right has been running almost all of the governments in the past few decades, and why he himself would be considered an underdog, Koppel said that “there are insiders and outsiders by different criteria. So I’m an Ashkenazi, a professor, I’m an American by background, so in these senses, one could think of me as elite. But the point is, in some weird way, as a person with conservative political views and with a religious worldview, in general, and as a settler, yes, I regard myself as an outsider, even as an oleh [immigrant to Israel], even though I’m from the US, which is not the same thing as someone from Afghanistan. There are places where people with power see me – they don’t think that my opinion should count for as much. On the other hand, people are going to point out, I do run Kohelet, which is maybe the most influential think tank in Israel, so I can’t portray myself as a pathetic creature who has no influence. I do have influence on certain levels, but I see myself as representing the people who are not heard.”

KOPPEL ACKNOWLEDGES that there were certain mistakes made in this current triumph. “There were negotiating tactics where you put some goats into the thing,” he said, in order to create a compromise later on, “but even when you do that, you need to do that in a clever way. If your initial proposal is so crazy that nobody’s gonna pay attention to you,” he thinks that was a problem.

The negotiation tactics, as well as the override clause, “were mistakes,” Koppel said. “There was also a mistake that if you’re going to roll something out that’s so dramatic, you need to do it deliberately; you need to first figure out how you are going to explain this to the public. What are the possible consequences of it, and how are you going to deal with those consequences? In other words, it’s a process that needs to be done in a deliberate and thoughtful fashion.

But he added that he never expected such a resistance. “I don’t think that any of these flaws were so major that it required this kind of an outburst.”

He thinks that if a group of MKs from the opposition would come at the start and say that they want to create a negotiation since many of the suggestions are exaggerated, “they would have gotten this compromise right at the beginning.”

Koppel added that he says this with full faith since “we in Kohelet have been sitting with our counterparts on the Left and negotiating since the very beginning. We quickly reached these agreement points. There were also things that we couldn’t agree about.”

He emphasized that he knows “there are serious people who have serious concerns. And, obviously, when you negotiate, one of the things you do is you listen to the other side, and you hear what’s bothering them. We felt at this point that the negotiations had reached a point where everything was on the table, that nothing needed to be hidden.”

Asked if he understands the depression and pressure many Israelis are feeling nowadays, many of it being blamed on him, Koppel answered that he of course knows that “people are anxious,” but said that he thinks that “if people would really drill down into the issue and not listen to the rhetoric,” they would feel differently.

“There’s a narrative that went out that this is the end of democracy; that all of these guys are crazy. I think if people would actually get beyond that; if they would meet with [Finance Minister] Bezalel Smotrich instead of boycotting him when he visited the US this week; if they would actually sit with him and see what his opinions are in general – they would have discovered that he is actually very much in favor of free markets. He’s quite liberal on these things.”

Koppel encourages international leaders “not to make their judgments about politicians based on the newspapers, but to actually meet them directly.”

The same thing with judicial reform: “Instead of reading the narrative and listening to all the inflammatory rhetoric about all the damage it’s going to do to democracy, to business and to security, if they would actually read the proposed reform and understand what the motivation is, I think they would discover that it’s not so terrible.

“I think that in three or six months from now, we’re going to be in a much better place,” he said toward the end of the interview, optimistically.

“The people, the elite, who feel that this country belongs to them and they don’t in any way like the riffraff that’s presuming to take control – [they] are going to be protesting for a long time, because it’s going to take them a while to adjust to the fact that they don’t get to run everything.”