Netanyahu's logic on the judicial reforms is flawed - opinion

Prime Minister Benjamin Netanyahu recently stated, as reported in the press: “There was indeed a huge demonstration in Israel – millions of people took to the streets and voted in the election [two months ago]. One of the main issues they voted for is reforming the judicial system.”

Speaking at the weekly cabinet meeting in Jerusalem on January 15, Netanyahu doubled down on his argument that “the millions of citizens who voted for the right-wing camp knew about our intention to comprehensively reform the judicial system. More than that, they demanded it.”

But while, for sure, millions of citizens voted for the right-wing camp, the extent of judicial reform was not on the ballot and it is specious of the prime minister to make the jump from voting for change to voting for the specifics of change.

In addition, no doubt many people (myself included) who did not vote for the right-wing camp also want judicial reform. Yet again, the specifics were not presented for a vote and each person who is in favor of reform has a different idea of how that reform should be structured.

But the prime minister has another issue that he and his associates talk about all the time, which also lacks a basis in fact. We often hear that the reason the Knesset needs to have an override option is because members of the Knesset, elected by the people, are the ones who should be determining public policy, not the HighCourt judges who are selected by “their own,” as it were.

But this, too, is flawed logic. Knesset members per se are not elected by the people. The people vote for slates whose members are placed in position by the party bosses and are beholden to them, not the people who voted for the slate. 

The absence in Israel of individual Knesset members being tied to specific districts (similar to members of Congress in the US) makes a mockery of the statement that the Knesset is elected by the people. The lack of representative government where elected officials have to face the specific voters who put them in office, is not much of an improvement over the way High Court judges are currently selected.

What is in the judicial reforms?

BASED ON what the media is reporting and what protesters are saying, my guess is that the majority of the population would like to see “reform” take the following format:

Judges on the High Court should be appointed for a 15-year term, rather than a lifetime appointment. The committee that appoints these judges should be composed equally of representatives of the legal profession and the Knesset.

No sitting High Court judges should be involved in picking new judges. A judgment by the High Court is subject to Knesset review and can be overturned, but only by a vote of 90 members of the Knesset (i.e. 75% of that body).

This would take care of many of the issues that have surfaced over the years and that have plagued the efficient operation of the court. Judges would not be appointed by their own colleagues so as to avoid conflicts of interest or stagnated thinking. Judges would have fixed terms.

There would be a super majority provision for the Knesset to overturn a decision of the court. I have a high level of confidence that if this were put in front of the voters of Israel in the form of a referendum, it would also pass with a supermajority of the population. Everyone needs to remember that in a democratic society, it is the court that guarantees democracy, not the politicians.

Weakening the court puts democracy at risk. It does not destroy it, as some are saying these days, but it does weaken the foundations.

The American historian, William James (1842-1910) wrote: “The deadliest enemies of nations are not their foreign foes; they always dwell within their borders... The nation blessed above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly; by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks.”

As we approach the 75th anniversary of our country, we would do well to take these words to heart.

The writer has lived in Jerusalem for 39 years. He is CEO of Atid EDI Ltd., a Jerusalem-based international business development consultancy, former national president of the Association of Americans and Canadians in Israel, and a member of the board of the Israel-America Chamber of Commerce.