Basic Law for basic laws: Solving Israel's judicial reform dispute - opinion

Justice Minister Yariv Levin is correct that Israel’s Supreme Court has become a self-perpetuating entity that is striking down laws without clear authority to do so. But Levin’s judicial reform proposal creates a new problem: it vaporizes any semblance of checks and balances that are widely considered to be important for good government.

Many have expressed grave concerns over the proposal, particularly its provision to allow the Knesset to overrule High Court decisions with a bare majority of 61 votes. Some have pointed out that one of the key Basic Laws being used to overturn regular laws, Human Dignity and Liberty, was approved by the Knesset in 1992 with 32 votes in favor, 21 opposed and one abstention, a plurality that lacks the overwhelming majority we like to associate with constitutional rules.

Opposition leader Yair Lapid has proposed that President Isaac Herzog break precedent to set up a commission to examine the matter. Prime Minister Benjamin Netanyahu has responded by saying that the plan is likely to be softened and that he is ready to hear counteroffers.

But the players are sticking to their opening positions and not making counteroffers. This makes some sense because in the Middle East, a compromise plan is seen by the other side as a new, softer opening position, thereby weakening the negotiating position.

I’m not a player. So here is a counteroffer with which everyone should be able to live.

A counteroffer to Israeli judicial reform: A Basic Law about basic laws

With 80 votes, pass a new Basic Law about basic laws. Specify that a Basic Law needs 80 votes to have constitutional status and that the courts can only strike down other laws on the basis of such an 80-vote Basic Law. Revisit the existing Basic Laws and re-pass the bulk of their content with 80 votes.

Such a plan addresses the core concerns of the government and the opposition. It preserves the power of the Knesset because the courts will now be limited in the laws they can strike down. It also preserves core rights, such as the property rights emphasized by tech and financial leaders as being essential to commerce. Such rights have wide support and can get the 80 votes needed to become constitutional rights.

Such a reform would resolve the current crisis by creating a system of checks and balances. Coupled with a second reform to remove the role of the Supreme Court in choosing its successors, it would result in protections from both legislative tyranny and judicial tyranny.

These protections would be as robust as those in the US Constitution but in a very different form, because of the very different governmental structure in Israel. There is no shame in drawing inspiration from checks and balances that have worked elsewhere.

Such a plan to solve the judicial crisis seizes the moral high ground by creating a system that is not only just but simple and stable. Adopting it would be an impressive display of Israel’s resilience by solving a problem that for over 70 years has been festering and today is creating an atmosphere of chaos.

The writer is a neurologist and neuroscientist, who is a frequent contributor to The Wall Street Journal.