Fools rush in

The Knesset will soon be convening for its summer session. None of the governing coalition’s proposed legislation aimed at eviscerating Israel’s judiciary and making it akin to a Hungary-type democracy was enacted prior to the Passover break.

Not because the proponents did not want to jam the legislative package through, but because of the widespread public opposition, culminating with huge, spontaneous protests in the streets the night Prime Minister Netanyahu announced he was firing Defense Minister Gallant for the offense of warning the country that the proposals and the division they have created were causing a security risk.

Apparently, the strong, broad-based, persistent opposition, perhaps coupled with the signs of adverse impacts on the economy and with clear warnings from Washington that it did not look kindly on the changes, gave some members of Prime Minister Netanyahu’s Likud Party as well as Netanyahu himself reasons to pause.

One key piece of the coalition’s package, which would put all the power to appoint judges in the hands of the executive/legislative branch, i.e. the governing coalition, has been positioned for its final vote, which could be taken on virtually a moment’s notice.

In contrast to the American system, the executive branch in Israel is not separate and independent from the legislative branch. As in other parliamentary systems, the Prime Minister is the leader of the legislative coalition in power. Unlike in the U.S. system, the Prime Minister and the legislature are not checks on each other.

If the Knesset passes the legislation, the judicial system will essentially be a tool of the executive/legislative branch, i.e. the ruling coalition.  There will be no checks on power.

If one takes the pronouncements of Justice Minister Levin, the coalition’s chief advocate of the proposals, and many of his allies, at face value, that is exactly the objective. They resent a judicial system that interferes with what the majority coalition wishes to enact.

They do not want to hear about democratic niceties such as due process, minority rights, defendant’s rights, asylum seeker’s rights, and all those other features that make a democracy a messy and frustrating but cherished institution.  They view such nuances as nuisances.  They are not shy about so stating.

Negotiations under the auspices of President Herzog have been going on since the start of the Knesset break.  Some reports are of progress.  Other reports or leaks indicate no real substantive progress.  Many are urging the negotiators to take advantage of this “opportunity” borne of crisis to draft a constitution.

Trying to draft a constitution and/or even trying to come to agreement on other key governance issues short of a constitution at this time and under these circumstances is a dangerous thing to do.  At best, the effort will result in imperfect, perhaps fatally flawed, provisions that will continue and possibly exacerbate Israel’s internal disputes.  At worst, it would result in violent divisions.

A constitution is not a panacea.  A few countries with constitutions:  Russia, Iran, Hungary, Poland, Cuba, Myanmar, Venezuela.

Countries without constitutions:  Canada, New Zealand, United Kingdom.

It would be especially dangerous to try to draft and adopt a constitution under pressure, deadlines, draconian proposals hanging over your heads, and the wrong people in the negotiating room.

Under the most favorable circumstances, drafting a constitution for this country will be a difficult challenge.  Coming to an agreement on many of the other questions of governance currently at issue also will be very difficult.  The effort requires time, trust, patience, the right people, and no drop-dead date.

None of those conditions currently exist.  The Prime Minister periodically threatens to pass the current package if the parties do not come to agreement.  Some of his coalition members are insisting on it.

The current package is undoubtedly being used as a starting point for negotiations.  It shouldn’t be the basis of negotiations. It is not a proposal to modify or reform an independent judicial system.  It is a proposal to completely neuter the system and to destroy several vital aspects of a democracy.

If the proponents are serious and sincere about coming to a compromise that enhances rather than destroys democracy, they should drop the current legislation. A commission consisting of historians, legal scholars, experts in governance, judges, and current and former office holders should be given the task of seriously deliberating and drafting proposals for governance.

Among subjects that could be discussed:

1. Standards for what is a justiciable issue, including requirements for standing.

2. Criteria for overturning laws.

3. Provisions to ensure that judges represent a broad spectrum of society and include members with various legal philosophies, although former Justice Minister Shaked, not viewed as a great friend of the judicial system, recently said that she had no problem meeting those objectives under the current system.

4. Legislative districts. Israeli Knesset candidates depend on being in the good graces of party leaders to get high enough on the party’s list to get into and to stay in the Knesset.  Even in those few parties that hold primaries it still is important to be in tight with the leadership and party power brokers.  Districts would make members more responsive to members of the public.

5. Two houses of the Knesset.  One might be a check on the other, as in the U.S.  If different parties held power in each house, that would also provide a check.

6. Perhaps a separate election for prime minister in order to untie that position from being the leader of the coalition and, thus, the government.  This is a difficult one because it runs against the basic concept of a parliamentary system.  It was tried a number of years ago and resulted in some unanticipated adverse impacts.

7. A constitution, including a bill of rights.

The sort of deliberations these ideas demand requires time, patience, trust, and expertise.  Negotiations over the U.S. Constitution took about two and a half years. The Bill of Rights took another two years.  It was a tough, tenuous process.

And it was not a sure thing.  As Benjamin Franklin reportedly responded when asked whether the U.S. would have a monarchy or a republic: “A republic if you can keep it.”

We will only keep our Jewish democracy if wise, dedicated Israelis are able to draft reasonable, fair provisions that are supported by a wide consensus of the Israeli people, not a rush to come to a deal with a sledgehammer hanging over the negotiations.

 (Originally published in The Times of Israel)