The quote from one of the greatest writers of all time Anton Chekhov suggested that people need to be literate enough to read signs on the pubs or books they don’t understand. These days even educated people do not always read the signs. Unofficial statistics suggest less than 1% of the public has ever tried reading or understanding the Judiciary reform legislation, let alone thousands of years of Jewish Judiciary.
Debates are encouraged in Judaism. This is oxygen filling an edifice of the three-thousand-year tradition, cognizant of the fact that every person is unique. Four sons at the Passover, four species of the Sukkot are different yet equally important in their voices. Vigorous debates between the Houses of Hillel and Shammai rattled Judea, making everything a subject of intellectual discourse. Talmudic literature produced an unprecedented structure of arguments and quantum space for resolutions.
Our ancestors followed meticulous duties to select the judges for the 71-member upper court (Sanhedrin), 23-member lesser court, or ordinary 3-member tribunal. Judges were required to demonstrate wisdom, humility, distinction in the Torah, knowledge of medicine, mathematics, astronomy, and even in the teachings of idolatry. Each tribe and city would choose judges from among themselves.
For 2,000 years in exile, Jewish people have established procedures for ruling in Jewish courts. Talmud has become a body of legal decisions and precedents, while Rabbinic academies resolve the most complicated disputes and legal litigations. Rabbinic consensus in medieval Europe forbade Jews from suing each other in gentile courts. The responsa of the unrivaled Barcelonan legal authority Solomon ibn Aderet enforced this long-entrenched tradition.
In December 1947, Leo Kohn, the secretary of the Jewish Agency and an authority in constitutional research, was asked to draft a constitution. Kohn drafted three proposals; however, the constitution was never completed. David Ben-Gurion was one of the opponents, arguing that the fledgling state was not ready for the rigid structure of the constitution. The Knessets occasionally enacted basic laws with “entrenchment” clauses that had a capacity of striking down the legislation. However, in the legislation of 1992, Chief Justice Aharon Barak championed an elevation of all Basic Laws over ordinary legislation. Supreme Court unilaterally declared the eleven Basic Laws drafted over some 45 years a de facto constitution and granted itself the power to strike down new legislation. This judicial self-activism created a constitution, unbeknownst to most Israelis and the world.
The judicial reform of 2023 proposes changes in the Judicial Selection Committee and in the authority of attorneys general; introduces an override clause; and changes the standing before the courts as well as limits their ability to rule based on unreasonableness. The standing clause establishes an authority for the Supreme Court for a constitutional review by the law, rather than by de facto agreement.
Judicial selection is a cornerstone of the proposed legislation. Today the judges are appointed by a nine-member committee, requiring a 7-vote super majority. Three Supreme Court justices on the committee can veto any nomination, the feat undemocratic at its core. Current selection process has produced the most homogenous Supreme Court, in full contrast to the society it rules over. The proposed legislation will give most votes on the committee to elected officials, emulating the procedure in the leading Western democracies.
At the same time, the override clause is counterproductive and could potentially lead to unpopular laws being enacted by virtue of a basic majority.
Properly fixed judicial selection would have addressed most of the current judicial issues. Any claims that judicial reform leads to dictatorship and incitement waged by Korach-like populists are groundless, dishonest, and harmful to the State of Israel. Before the Judicial self-activism of 1995, Israel was a strong democracy. Aligning the legislative branch with the leading democracies and making it genuinely represent the people of Israel, neither entails a dictatorial overturn nor hinders the path to the constitution.
{Reposted from IsraelHayom}
