The writer is the former Deputy Attorney General
I was a teenager and even though I was not yet old, I participated in dozens of legal conferences in which we lamented the impending end of democracy and the need to save it from the politicians “standing for its destruction”.
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On the other hand, I also heard dozens of references from political parties about the “lust for power” and the “corrupt” legal system, which is the source of all evil in the country, and about the need to return control to the elected echelon and stop the “judicial kidnapper”.
It is possible that the frequent cries of “wolf, wolf” dulled our senses from recognizing real danger, but unfortunately in recent weeks, even those like me who are not in a hurry to use bombastic and extreme announcements, cannot escape the feeling that this time the danger is tangible. It is possible that the wolf really developed a prowl and an ambush. The sheep that may be caught in the jaws of that “wolf” is not a metaphorical figure from Aesop’s rule; It is the State of Israel that may end up in constitutional chaos which may unravel the delicate seams of Israeli society.
When following the public discourse recently, it is difficult to escape the growing feeling that the two systems – the legal and the political – are racing on two trains on a clear collision course, with the heads of the systems speaking mainly to their “base”, convincing the convinced and basking in the heat of the battle among those who cheer them on. If the moment of the collision comes, God forbid, the passengers of the two trains will be harmed by it, and first and foremost the image and future of the country that is dear to all of us.
In this reality, it seems that all that is left is to hope and wish that the heads of these systems will stop talking passionately about each other, and start talking to each other as soon as possible. They have to do this in an attempt to calm the spirits and reach agreements on conducting essential reforms – and with the understanding and internalization of everyone, that both a unilateral revolution and a freeze on the yeast could be destructive.
The starting point for such a discourse in my opinion is twofold. First, the legal system is in vital need of reform. Unfortunately, the system as a rule rejected various proposals for corrections and changes, and in its conduct over the years it honestly bought a significant part of the criticism against it. Both in the past and now, many of its speakers mainly passionately explain what and why it is forbidden to change, but refrain from addressing the question of what and how it can and should be corrected.
Nazri’s plan to reform the justice system:
The overcoming paragraph
Pass a comprehensive legislative foundation law that will state that the High Court can disqualify laws only in an expanded composition and with a special two-thirds majority. In addition, the law will include the Knesset’s authority to overcome the disqualification of laws, with a majority of at least 65 MKs
The law of ombudsmen:
to give ministers the possibility to transfer ombudsmen from their positions in exceptional cases; to strengthen the representation of ministers in the process of appointing ombudsmen; and define in a more focused manner the role of the Ombudsman in implementing the minister’s policy and within the framework of the law
Reasonableness:
Reduce the reason for reasonableness so that it is used only in exceptional and extreme cases and establish that the decisions of the ministers and the government cannot and will not be able to be overturned by the reason for reasonableness
Selection of judges:
Give politicians more representation in the committee for selecting judges, but not in a way that would not give any coalition absolute control over the appointment of judges
Second, the political system should not “punish” the “bad lawyers”. Such a punishment will harm the country, its institutions and the social cohesion that is vital to it. Such a punishment would harm the independence and robustness of the legal system, and politicians should not take the importance of these lightly. An independent and strong judicial system is a strategic asset of the state also in the democratic aspect internally, but no less so externally; This is not the place to detail many situations in which we used the Ministry of Justice, and the independence and robustness of the courts and the General Prosecutor’s Office, to defend in international courts elected officials, officials and senior officers who acted on behalf of the state.
The conclusion from these two basic assumptions is that a reform is required that will lead to correction, but one must be careful of a revolution that will lead to crushing. In my view, parts of the plan that is currently being proposed and the way it is managed are very problematic and could be dangerous if left as such. As the plan is fully realized, it will be closer to a destructive revolution than a vital reform.
And yet, in my opinion, the justified objection to the program as it is, cannot end with explanations of what and why not. An open and genuine dialogue must take place when also offering what is correct and required to be corrected. I would like to present, on the tip of the fork, my proposals in relation to the various issues in the Minister’s plan.
Yes to the override clause, no by a majority of 61
A superseding clause with a majority of 61 is dangerous. In fact, it gives any minimal coalition majority the possibility to overcome a High Court ruling, and will result in frequent changes when each new government will reverse the decisions of its predecessor and fundamental issues will be in the hands of the coalition creator.
That is why comprehensive legislation is needed, which will define the normative level, establish a mechanism for the manner of legislating basic laws that will give unique expression to them being chapters in the future constitution, and above all establish the two main legs for regulating the constitutional dialogue between the authorities: one – the High Court’s authority to invalidate laws in a broad composition and by a special majority (for example , two thirds).And the second – the authority of the Knesset to overcome the disqualification of a law in certain cases, and here again not with a majority of 61, but of at least 65, or another majority that will also include parts of the opposition.
The ombudsmen law will be affected by governance
Regarding the proposed ombudsman law, turning ombudsmen into political appointees will not only harm their ability to fulfill their role in maintaining the rule of law, but will also harm governance. The same governance in the name of which the parties to the law seek to advance. As someone who believes that there is indeed a problem and that sometimes excessive legalization harms governance, I am convinced from my many years of practical experience in hundreds of issues, that the implementation of the proposed law as it is will actually harm governance.
It will be easier and simpler for the ombudsman whose legal position the minister is not bound by to establish a position opposed to the minister’s policy, and he will not at all be required to find a legal solution, even if urgent, in order to implement the policy. In addition, an ombudsman who changes frequently with each new minister will not gain knowledge and experience which will enable him to convince of the necessity of the importance of promoting the policy of the minister and the ministry and finding legal solutions in front of the Ministry of Justice officials and in front of the courts. The credit that will be given to him by the courts when he is perceived as a political appointee will also be lower. The result will therefore be double damage – both in the aspects of the rule of law and in the aspects of governance.
What should be done? Giving the minister the possibility, through a mechanism to be determined, to transfer an ombudsman from his position in exceptional cases. Examining strengthening the minister’s representation in the appointment process (currently he has one representative out of four members of the committee); Legal prevention” for clear edge cases and not in issues that are primarily policy questions; Implementation of a procedure, which we prepared in the Ministry of Justice, which is intended to optimize the work of the ombudsmen and referents in the Ministry of Justice, to shorten schedules, to define clear and fast decision-making mechanisms, etc.
The reason for the likelihood was blown out of proportion
The reason of reasonableness is a very important legal tool that allows the protection of the citizen against the faults and wrongdoings of the administrator and the government apparatus for its failures and limitations. The proposed blanket repeal would undermine this and roll back important legal progress that made this protection possible for citizens. However, it cannot be denied that the use of the reason of reasonableness has been expanded over the years at the same time as giving a broader definition to the reason. It cannot be denied that reasonableness is a subjective concept in its essence, and its broad use, especially towards a selected level, raises a serious problem in the aspects of separation of powers.
What must be done? Instead of canceling, reducing the reason for reasonableness, so that its use will not be in a broad version that further sharpens the difficulty of using a subjective tool of stepping into the shoes of the decision-maker. Beyond that, a statement that ministerial level decisions, and those made in the government, including matters of appointments, cannot be overturned on the grounds of reasonableness, and only accepted grounds of administrative law will be allowed. – The time has come for Leishman.
The committee for appointing judges is not sacred
The proposed proposal according to which the coalition will actually have seven representatives against one representative of the opposition blatantly violates the balance in one direction and will at least create the appearance of a violation of the independence of the court, if not more. It will also damage the status of the court internally and externally.
what yes The composition is not sacred, and its change can be examined. The area of operation of the Supreme Court has also changed and expanded since the days of the establishment of the state, when the current composition was also determined. The previous government changed the composition of the Committee for the Selection of Judges and added an additional minister to its composition, as well as claims a rabbi from whom the Minister of Religions is appointed. There are differences, of course, but it is still possible to examine a certain change. And more moderate than the proposed one, which would proportionally increase the political representation. All this, without reaching the extreme result proposed now which creates a danger of excessive politicization. A mechanism that on the one hand would deny the right of veto to judges and on the other hand would not allow appointment by the votes of coalition members alone could be a right direction.
Any victory will be a loss for the country
I have listed in a summary a reference to the various proposals, which also includes what is right to do and not only what is not. You can think of additional ideas in each of the topics, but the direction must be neither sanctifying the existing nor crushing the existing, but its correction. Not legal “naturalists” who devoutly refuse any change and consider it mainly heresy, and not political revolutionaries who act in the spirit of the words of the International “Old world witnesses to the destruction”. If the trains we have described continue their gallop, the collision is imminent. The responsibility of their drivers and leaders is to brake.
But not only the conflict is dangerous, even if the current struggle ends in a sharp decision one way or the other, the result for the country will be disastrous. If the proposed plan goes through as it is, there will be a significant damage to the democratic nature of the country, and to its social cohesion, when millions of citizens will feel that their beliefs and perceptions have been completely trampled by the political majority.
At the same time, if the result of the struggle is decisive in the other direction, the changes will not pass at all and the existing situation will be maintained – this will also be a disastrous result for the country: millions of other citizens on the other side of the barricade will feel that their democratic choice and the policy they believe in has been overrun by a legal monopoly. It is therefore forbidden for one side to win clearly, it will be a victory for Pyrrhus. The only way is to make real changes and corrections and not a total coup. In my view, corrections in the spirit of what I mentioned are correct to begin with and not as a hindsight; but even those on both sides who believe otherwise must understand that such an extreme position could bring down We are all in the abyss, and there is no escape, even if in retrospect, to build a bridge that will allow us to connect the two camps that are on the edge of the abyss and prevent the crash. If there is an open and real discourse, if the leaders of the systems stop attacking each other and talk to each other, this is within reach, The basic outline is there. We have no other choice. We have no other country.