The new Israeli government headed by Prime Minister Benjamin Netanyahu has committed itself to judicial reform, which has become a populist cause in the country, said Lahav Harkov, senior contributing editor and diplomatic correspondent at The Jerusalem Post.
“The far right has taken it on, and some believe this is going to affect Netanyahu’s corruption case,” she said. “They support it because they love Netanyahu.”
Harkov was speaking to broadcaster and writer Howard Feldman during a South African Zionist Federation webinar titled, “What’s next for Israel?”
One of the judicial reforms being called for is that the Judicial Selection Committee, which chooses Supreme Court justices in Israel, should include representatives of the public instead of those from the Bar Association, Harkov said. “The other reform is to get rid of the test of ‘reasonableness’ in regard to legislation and government decisions, and to introduce an override clause.”
The latter was introduced in Canada in the 1970s, Harkov said, and provides for a vote to temporarily override a Supreme Court ruling.
Harkov said there was a broad consensus amongst the Israeli public that some reform was required.
“Some people think that the reform proposals go too far. For example, the Judicial Selection Committee would be too political. Some people say that there needs to be a course correction, but you can’t replace one injustice with another injustice. There’s also the argument that judges have too much influence.”
What’s causing the incredible anger and fear which motivated 110 000 people to protest in Tel Aviv on the evening of 21 January? Feldman asked.
“A lot of people have forgotten that a year and a half ago, there were thousands of people – even sometimes tens of thousands – protesting outside Netanyahu’s residence every single Saturday night,” Harkov said. “In some ways, this is a new version of that. However, they have found something to latch on to because there are real concerns with judicial reform.”
Harkov said there were two schools of thought when it came to the role of the judiciary in Israel – one for judicial activism, the other against judicial activism.
“To rewind, so people understand what these schools of thought mean, Israel doesn’t have a Constitution. To a certain extent, the country is based on the British system, which doesn’t have a Constitution either, but rather a legal tradition that goes back centuries. Israel also has a legal system that goes back millennia.”
When Israel was established, the country introduced basic laws, supposed to be the building blocks of the Constitution, Harkov said. “In the beginning, they consisted of things like what the Knesset did, what the president did, and how elections work. In the early 1990s, the Knesset passed two laws which pertain to civil and individual rights in Israel. The court decided to use those.”
Harkov said the basis of ‘reasonableness’ isn’t based on what’s written in the law, but rather on what a group of judges have decided is reasonable.
“This is something that people who oppose judicial activism really oppose. Then, you have people who support judicial activism. They say that maybe there aren’t strong enough legal protections for minorities in Israel. In Israel, the coalition, as opposed to the opposition, is very powerful. The opposition has very little power to change things. Some who support judicial activism say that a very strong system of checks and balances on politicians is important.”
Harkov said the companies pulling operations out of Israel are run by Israelis. “Microsoft, Google, and Facebook are still in Israel. It’s entirely about politics. Some owners of high-tech companies or venture-capital funds are left-wing politicians who see this as a form of leverage and a way to pressure the government. But Israel ranks really low right now in certainty of business contracts, partly because the court doesn’t just have to read the text of your contract, it can come in and say something is unreasonable, which isn’t common in other countries. I don’t think judicial reform would affect business in any way other than this.”
Harkov said Netanyahu put forward a fair argument when he said judicial reform would make it better to do business in Israel.
“Netanyahu has to keep a coalition of different parties together, and he’s going to have to say yes to something. He’s the moderate in this coalition. He’s the person who has to withstand the wave of whatever the more extreme balance of the coalition wants to do.”
People in Israel really want public transportation on Shabbat, Harkov said. “A lot of people can’t afford cars or don’t want to drive, so the last government tried to push it forward and it didn’t happen. The haredim really oppose it, so it’s not going to happen. There’s an attempt by the haredim and some elements of Likud to stop more things from happening on Shabbat. Mostly, Likud voters don’t want more things to be closed on Shabbat, they still want to have soccer games on Shabbat, for example.
“In the last government, the culture minister decided to start having all kinds of cultural events on Shabbat. He said that Israel symbolically never sponsored events on Shabbat in the past, and he thought Israel should do that. Instead, there was this huge media blow up.
“In the United States specifically, Jews are much more to the left than in Israel. In Israel, the right-wing is growing. Israel is one of the few countries in the Western world where young people are more right-wing than older people.
“Netanyahu is accused of corruption and the accusations vary in their severity. But in this case, law enforcement and officials have messed up in a lot of ways.”
Feldman said, “I often come under fire for making comments about Israel or criticising Israel generally. Often when Jews in the diaspora criticise, we are told to know our place. What are your thoughts on this?”
“It’s not fair,” Harkov said. “That being said, it’s always important to put criticism in the right context. Sometimes people care so much about Israel, they suddenly become hypercritical. Israel is a country, not a magical place. People often forget that.”
