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<\/span>The reform aims to achieve two overarching goals:\u00a0one is to change the genetic code of the judiciary by politicizing it \u2013 and this must be firmly and unequivocally opposed; the other is to modify the powers of the Israeli courts \u2013 and here there is room for a professional discussion that could result in altering the existing situation.<\/p>\n
Politicization of the judicial system<\/h3>\n
The intended reform seeks to politicize the system on several levels:\u00a0changing the composition of the Judicial Selection Committee, with a majority accorded to politicians; holding hearings for Supreme Court nominees in the Knesset\u2019s Constitution, Law and Justice Committee, and making ministry legal advisers fiduciaries of the ministers. These proposals are extremely dangerous because they undermine the legal system\u2019s independence, essentially decapitating it, thus stripping it of its ability to function for the common good.<\/p>\n
Israel is a \u201cstate of all its minorities.\u201d No Israeli is guaranteed long-term status as part of the majority group. We are all threatened minorities: women, gays and lesbians, Arabs, ultra-Orthodox, settlers, the disadvantaged, the wealthy, and others. We all need an independent Court to protect us when the majority abuses us on the basis of interests or ideology.<\/p>\n
But if the judicial system is politicized, the system itself will become a political actor. If the appointment of judges depends on \u201cflavor of the day\u201d politics, it will be impossible to trust the Court to stand up for us in times of need, against the will of the majority.<\/p>\n
There is no need to touch the Judicial Selection Committee\u2019s composition. Gideon Sa\u2019ar already introduced the necessary amendment \u2013 the requirement that a majority of seven of the nine committee members is required to make appointments to the Supreme Court \u2013 and Ayelet Shaked already made use of it in appointing hundreds of conservative judges across the judicial system, including several Supreme Court justices.<\/p>\n
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The veto power granted to \u201claw\u201d and to \u201cpolitics\u201d in the present committee configuration ensures that it will see to a balanced composition of the court, and that is what has been happening in recent years. If it\u2019s not broken, why fix it?<\/p>\n
Those who want to ensure that the executive branch will exercise its authority according to the law, for the benefit of the public, must institute a legal advisory system that will not submit to the dictates of those in power \u2013 the ministers. The \u201cclient\u201d of a legal adviser in a government office is not the appointed minister, but the entire public.<\/p>\n
In this way he differs from a private citizen\u2019s legal adviser, who must act in the interest of the individual who hired his services. A legal adviser who knows he serves at the pleasure of the minister, to \u201cjust let him govern\u201d to put it euphemistically \u2013 is a problematic adviser.<\/p>\n
But aside from the requirement to fully preserve the legal system\u2019s independence from politicization, one must be open to new ideas regarding the proper set of powers granted to it.<\/p>\n
Powers of the courts<\/h3>\n
The courts exercise judicial review of the reasonableness of executive action through a series of grounds: weighing extraneous considerations, exceeding authority, improper procedure, and discrimination, among others. Over the past generation, yet another ground for judicial review has emerged:\u00a0\u201cextreme unreasonableness.\u201d This is what the debate over the appointment of minister Deri is about.<\/p>\n
Although the law does not prohibit the appointment, the court is examining whether, under the circumstances of the case \u2013 repeat convictions, a promise that he would not return to public life, and more \u2013 the decision to hand Deri a ministerial portfolio is so misguided in the eyes of a \u201creasonable person\u201d that it must be annulled.<\/p>\n
Opposition to the extreme unreasonableness criterion stems from its ambiguity, and because, as noted by the retired chief justice Asher Grunis, the court does not have greater expertise than any citizen in determining what is reasonable and what is not. Such opposition is supported, in various ways, by many past justices \u2013 Moshe Landau, Menachem Elon, Zvi Tal \u2013 as well as by current justices, including Noam Sohlberg. There appears to be room for professional debate on this question, focused on better defining the criterion itself and determining the scope of its applicability. The extreme positions \u2013 all or nothing \u2013 are not justified.<\/p>\n
The reform item most widely discussed is\u00a0the override clause.\u00a0Who will have the last word on disputed questions \u2013 the Knesset or the Supreme Court? It has been proposed that the Knesset be able to reinstate laws invalidated by the court with a 61-member majority. This proposal amounts to a complete loss of protection for the rights of citizens and minorities in Israel. The outcry against it is justified.<\/p>\n
But even here there is a range of options, such as granting the Knesset override authority only with a larger majority (70, say, or a majority that includes MKs from the opposition), or denying the Knesset override authority if the invalidity of a law was agreed upon by a significant court majority (say eight of the 11 justices).<\/p>\n
Another idea that merits serious consideration is the application of the override clause in a qualified manner,\u00a0depending on the issue. For example, issues whose focus is the character of the Israeli public sphere ought to be decided by the Knesset, as they are essentially political. By contrast, issues that center around human and minority rights would not be subject to override, as in these cases the Knesset majority is the threat that must be defended against.<\/p>\n
We have no constitution and no basic law to regulate the relationship between the political and the legal. It would be a tragic mistake for these sensitive professional issues to be decided on the basis of a momentary political dispute between a right-wing government and the other half of the nation. A constitution is the only instrument we have left for setting rules of the game that are fair, that are acceptable to all, and that are preserved over time, regardless of the identity of the winner in the last elections.<\/p>\n
Those who oppose the reform as a whole and demonize the change seekers are wrong. Those who support the reform as a whole out of a sense that one had better \u201crush to the spoils\u201d are also wrong.\u00a0Enough with the automatic fortification around the status quo, and enough with the voices calling for revolution. In Israel\u2019s 75th year, the state must adopt a basic law that will serve Israelis when the veil of ignorance has been lifted.<\/p>\n
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