As the barricades between the camps opposing and supporting the government’s judicial reform grow bigger, it is time for Israelis to accept that both sides feel that they have good reasons for their positions.
The government is right that the current system for appointing high court judges is not sufficiently accountable to voters. The judicial activism of the high court compounds the problem by subordinating the will of the people as represented by both the Knesset and the government to the will of a self-appointed and self perpetuating court.
The opposition claims that the government judicial reform package dismantles the minimal existing checks and balances that protect citizens from the whims of any government in office. The “override clause“ enabling 61 MKs to overturn any judicial veto, they claim, may ensconce in Israel a dictatorship of the legislative majority.
Given that the current government is rightist and religious, most outrage at this clause is stoked by hyped fears of its possible consequences for Israeli women, religious minorities and secular citizens.
However, if an analogous proposal had been advanced by a leftist-secular majority, the outrage would be today felt by Israel’s religious citizens and residents of Judea and Samaria. These sectors would have good grounds to fear that the override clause could serve to deprive them of basic civil and political rights.
Therefore the judicial reform proposal as it stands, before any compromises are made, may threaten the cohesion and harmony of the nation not just today, but also in the future.
Currently, there are two probable outcomes to the judicial reform crisis: The government can ram the reform as it stands, after its own suggested modifications, through the Knesset and possibly transform what is now a serious political crisis into a full-blown institutional crisis. Otherwise, the government can sit down with the opposition and agree to a compromise acceptable to both sides.
The second outcome is clearly preferable to the first outcome. Yet is it optimal? Can it happen at all since the opposition refused to do so?
The danger of the second outcome, if it comes about, is that the agreed-upon compromise will be a pasticcio that makes everyone unhappy and harms Israel’s political-institutional life.
There is a third alternative outcome that should be considered: The verdict of Israel's citizens.
The judicial reform is a matter of sufficient political, institutional and historical weight to justify a plebiscite. A plebiscite would grant any judicial reform the legitimacy it needs to be respected by present and future Knesset majorities. This legitimacy is crucial to secure for Israel the political and institutional stability that are the hallmark of advanced liberal democracies.
A plebiscite could either ask citizens to approve or reject the government’s judicial reform or - alternatively - to express their preference for the judicial reform proposals suggested by of either the government or the opposition.
The advantage of the second alternative is that it would generate powerful incentives for both the government and the opposition to vie to present the most fair and intelligent reform package in order to win the plebiscite. On the other hand, if citizens were just asked to either strike down or approve a government reform package, the outcome could either be a preservation of the flawed status quo or the approval of a flawed reform.
The risk that citizens lack the legal expertise to weigh the pros and cons of each plebiscite option is real. Yet the greater danger is that if Israel does not settle the issue via a plebiscite, the future of Israel will hinge on shady backroom deals in the midst of chaos on its streets.
Rafael Castro is a political analyst with degrees from Yale and Hebrew University. He can be reached at [email protected]