The naysayers - opinion

One of the arguments put forward by the coalition against the opposition’s campaign against the legal reforms it is the process of instituting is that on November 1, the majority voted in favor of these reforms and that though it can express its displeasure, the opposition should simply acknowledge its defeat.

There is no doubt that a very large majority in the country believe that it is high time that Israel’s legal system be revamped. But did the voters of the parties that constitute today’s coalition really understand what was being proposed and all the consequences if the proposals will be implemented? I very much doubt it.

However, today the main complaint that the coalition and its supporters express against the Jewish opposition is that all it keeps saying about the reform plan for Israel’s legal system is “no,” while failing to offer alternative proposals. Technically, the coalition and its supporters are absolutely right.

However what the opposition says in reply is that while no one denies that reforms are urgently required, the coalition’s various bills, allegedly designed to reform the system, do not address any of the required reforms. Instead, the proposals speak of major changes in the system, which in the eyes of the opposition (and even among certain sections of the coalition that for the time being do not dare express their concerns) will do away with the legal system as it has evolved since the establishment of the state in 1948. Doing so, they say, would greatly weaken the judiciary and ministerial legal advisers, and enable the executive to escape any effective judicial review.

The opposition has so far avoided saying what sort of changes it supports and I am not at all sure that this is an effective tactic unless one has lost all hope of forcing the coalition to hold its horses rather than continue to gallop unperturbed toward a type of regime that many of us abhor and many others simply do not understand.

My intention in this article is to describe some of the necessary reforms that the government has failed to address.

What judicial reforms are necessary in Israel that the government hasn't addressed?

For example, there is wide-scale agreement that the makeup of the Supreme Court is unbalanced to the extreme. At no point in time has there been more than a single Mizrahi justice out of the 15 Supreme Court justices, and much of the time he (never a woman) has been of Iraqi origin, as opposed to Mizrahim of another origin. Until fairly recently, the overwhelming majority of Supreme court justices have been liberal and secular, though in recent years the number of more conservative justices has grown.

THE INTENTION of the Government is to change the makeup of the Committee for the Selection of Judges in a way that an absolute majority of its members will be politicians from the government’s side. However, there is nothing to ensure that the makeup of the Supreme Court and district courts will be more balanced than it is today, rather than unbalanced in a different direction.

The only way to ensure that a real balance is maintained is to lay down in advance minimal representation for the various (sometimes overlapping) population groups, as long as they all have appropriate professional backgrounds. For example, the 15-member Supreme Court should include at least three Ashkenazim, three Mizrahim and other Jewish non-Ashkenazim, one or two Arabs (perhaps one Muslim and one Christian), and at least four religious Jews – possibly including a haredi with a suitable background – as long as one can be found.

There should be at least five justices who are progressive and at least five who are conservative. The makeup of the selection committee should be such that it will be capable of selecting suitable judges in the various categories as free as possible from political considerations.

Another goal for the reform is to ensure that the legal advisers in the ministries and other government agencies should be unable to block policy initiatives on ideological grounds but are able to provide non-biased legal advice and prevent illegal decisions and acts.

Nobody should be forced to work with a legal adviser they do not trust. But the solution is not what the government is offering: to turn the positions of legal advisers into trust positions, in which the legal advisers are subservient only to the Minister or other agency head and not to the attorney-general, as is currently the situation.

Perhaps, just as it is being considered to divide the job of the attorney-general into two separate positions: that of legal adviser to the government and that of public prosecutor, so ministries and agencies should have one attorney whose job is to help the heads of these bodies implement their policies within the framework of the law and one whose job is to deal with run-of-the-mill legal decisions.

The opposition, as such, has not presented a formal position with regards to the overriding clause, designed to limit the ability of the HCJ to cancel ordinary laws or articles on the grounds of their being unconstitutional and to absolutely prevent it from meddling with Basic Laws. Unless the HCJ will decide to cancel a law or articles in a law by a unanimous decision of all the justices sitting in judgment in the particular case, an absolute majority of the MKs (61) will be able to reenact the law or articles in it that were canceled by the HCJ, irrespective of the HCJ’s reasons for having done so.

ONE OF the reasons for not allowing the HCJ to touch Basic Laws is to enable the government to pass controversial laws as Basic Laws. This, for example, is what the government is currently doing in order to enable Shas leader Arye Deri to serve in the government, in order to get around the decision of the HCJ to disqualify his membership in the Government.

The truth, in this case, is that there are members in the opposition who are willing to accept the overriding clause and have even spoken of the conditions for their doing so: increasing the majority required by the Knesset to reenact a canceled law from 61MKs to 65 or 70 MKs and that must include a certain number of opposition MKs.

So far, the opposition has avoided placing such a proposal on the Knesset table because neither Justice Minister Yariv Levin nor chairperson of the Constitution, Law and Justice Committee Simcha Rothman are willing to discuss this option. At most, they would enable the opposition to propose their own bill on the subject but turn the proceedings in the committee into a farce. My own inclination would be to present a counter proposal on this issue, even though there is no chance that the coalition will consider it seriously.

Finally, a word about one of the most important reforms required in the Israeli legal system that isn’t mentioned by the government at all, nor by the opposition: the fact that legal proceedings in Israel are on average much longer and drawn out than in any other democratic state. It is not only the fault of the judiciary but frequently the result of delay tactics used by defense attorneys.

However, those who suffer most from this situation are the general public, who must frequently wait for many years before justice is done, if at all. I believe that this issue is much more important and urgent than most of the issues currently on the agenda.

The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, is published by Routledge.