[Editor's note: This article was written before Prime Minister Netanyahu's decision to halt the judicial reform, but it is nonetheless very relevant. The article was first published in the Times of Israel on March 24, 2023 and is being reprinted with permission ]
There is potential in Prime Minister Netanyahu’s speech to get the constitutional debate back on track, and head for a constructive and widely accepted outcome.
Yet his new approach cannot do any good unless and until he modifies the Coalition’s current “two plus one” proposal – whereby a Coalition majority on the selection committee could determine the next two judges plus the next Chief Justice from with the Court.
Let us look at the potential good in his speech. Indeed, very good. Even great.
The Prime Minister recognized that his crisis can be the occasion for introducing a more extensive bill of rights for all Israelis. These could add to the Basic Law on Human Dignity and bring it more in line with the rights recognized in advanced democracies, including freedom of expression and the right to vote.
Prime Minister Netanyahu also indicated room for finding a compromise on an “override clause”, including requiring a supermajority for its use and restricting its use to certain areas
He also began the process of cooling down the use of “mortal enemy” rhetoric in the context of a discussion of institutional reform.
Yet his proposed first step will taint the entire discussion and outcomes to follow.
The right-wing reforms are correct about some things – and many left-wingers would agree on these points. A High Court should have members with a diversity of experience, backgrounds, and judicial philosophies. These elements can improve the calibre of deliberation and writing. They also can make the outcomes widely acceptable among the public.
It is also true that in the past, the judicial powers-that-were sometimes excluded people like Ruth Gavison – who was a phenomenally clear thinker and writer, and committed to finding ways to reconcile different viewpoints rather than seeking triumph for one perspective.
But the mistake that old generals often make is “fighting the last war”.
The right wing has been in power, almost without interruption, for a long time. A quote for Ayelet Shaked, after she succeeded in 2017 in having three of her preferred candidates appointed to the High Court: “ In the past, there were sectors [of the public] who did not feel that the Supreme Court represented them. Today, it represents everyone. It is more diverse, it is more conservative”.
In any event, the way to deal with any previous excesses in one direction is not to “balance” them with excesses in the other direction.
The quality of the High Court will not be improved by giving the current executive the ability to effectively determine the next two appointees, and then determine the next chief justice. Even the Coalition proposals implicitly acknowledges that this “two plus one” system for the next two appointments is suspect. How is that? Because even the “two plus one” proposal is presented as an interim measure only. After it is implemented, for the next appointment, the third one, the High Court selection committee would need at least one vote that does not belong to a Coalition member. A fourth appointment would require the support of two non-Coalition committee members.
But what legitimacy will the first two appointees have if they are widely seen as plants of the current government?
What credibility could the next chief justice have?
It is never enough that the exercise of judicial authority simply be correct from a technical perspective. Justice must also be “seen to be done”. People in Israel – and a suspicious and often hostile international community – have to be given strong reason to believe that the courts in Israel are truly independent rather than a tentacle of executive power.
Mr. Prime Minister, please consider how “two plus one” works when the country is bitterly divided and when the credibility of the Israeli legal system is crucial to defending the interest of Israel in the international area.
Two wrongs don’t make a right.
Still less three wrongs.
Two tainted nominees and a tainted Chief Justice does not add up to even one credible court.
The “two plus one” proposal subtracts, not adds, to trust in politics and in the judicial system.
Do you want to turn around the situation, Mr. Prime Minister? Then every single nomination to the court, every selection of chief justice, should be one in which the people of Israel can have confidence.
All beginnings are difficult, says the Talmud. True. And no beginning should make the rest of the journey impossible.
Bryan's Jewish-themed musical "Consoulation: A Musical Mediation" premiered in the Spring of of 2018; https://consoulation.com His new album will appear in the coming months. Bryan Schwartz graduated with a doctorate in law from Yale School and holds an endowed chair at the University of Manitoba Law School. He is the author or editor of over thirty books and collections of essays. Bryan also created and helps to deliver an annual summer program at Hebrew University in Israeli law and society. He has served as a visiting Professor at both HU and Reichman university. . As a practising lawyer, Bryan has argued a number of cases at the Supreme Court of Canada, advised governments, and served as an arbitrator at the provincial, national and international level.
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