Professor Yuval Elbashan, Dean of the Faculty of Law at the Ono Academic College, is an enthusiastic supporter of the idea of judicial reform, but finds it difficult to accept the way the current government’s plan is progressing. He is part of a team that formulated an alternative proposal, released last month, to Member of Knesset (MK) Yariv Levin’s judicial reform package currently moving through the Knesset.
"For over 20 years, I have been saying everywhere, including in front of Aharon Barak, back when he was serving as President of Israel’s Supreme Court, that this system needs fixing, and in fact needs a massive overhaul," Elbashan told Davar. However, he added, "I don't like the way that it is being forced through, and that it is being done all at once. I'm not interested in what we choose to call it – a reform, a coup or a revolution. It doesn't matter. It's a very significant change, which can't be pushed through in this way."
Elbashan has 30 years of experience in the legal world, as a community lawyer who specialized in representing vulnerable populations and also as a law school dean who championed the cause of increasing the diversity of those who enter the field of law.
"My view of the justice system is from the back door. That is to say from the workers’ entrance,” he said. “It was precisely the weakest populations who needed it most, that did not receive protection from the justice system. Neither with respect to their human dignity nor with regard to their freedoms."
Elbashan has criticisms of the reform ("it needs to be corrected section by section"), and also of those who oppose it ("the opposition leaders are held captive by the extremists in the streets"), but in the end, he is convinced that "the differences are not that great between the parties, with the exception of the issue of the Committee for the Selection of Judges."
Elbashan has spoken with representatives of the opposition and the governing coalition in the Knesset, as well as with the leaders of protest groups, in the hopes of reaching a compromise.
"I had the opportunity to talk to some of those who call themselves the 'protest leaders' and I was not impressed," he said. "They are so bound up in the struggle but they are less interested in the outcome, and more in the protest itself. This is the romance of a struggle. If the protests continue like this and they refuse to compromise, we will all lose.
"Where does the idea come from that it must be all or nothing? Either this country is important to you or it is not," Elbashan continued. "Anyone who believes in democracy and claims that this country is important to them can't help but enter into negotiations and try to exert as much influence as possible on the wrongs of this decree."
Davar sat down with Professor Elbashan to understand his nuanced views on the reform.
The public debate today is focused on the question of whether the reform will abolish the separation of powers, and lead to the government controlling both the Knesset and the judicial system. Are you afraid of that?
"I don't see it happening. If there are enough Knesset members who want it, it doesn't matter what the court says and how they appoint judges. I’m familiar with the idea of a defensive democracy [referring to measures taken to restrict rights and freedoms in a democracy for the safety of the state], and I know about the desire to make a constitutional dictatorship. These don't work. All the tricks and shticks won't help. I don't understand how it's supposed to help Netanyahu in his trial. Even if they appoint judges, and assuming he won't live forever, and at the age of 80 the trial somehow ends, most of the judges currently on the Supreme Court will still rule on his case. It’s irrelevant to the current story."
What about the fear that the current governing coalition may restrict the right to vote and be elected in order to maintain their majority?
"I don't see that happening. There has already been a military government here and it's shameful. I think that the world today would no longer allow it to happen. I work in many countries where there is no longer a democracy. In the developing world there was often no real democracy, just a regime imposed by foreign forces. What happened to the judicial systems in Poland and Hungary – these are difficult cases and it’s not clear what we can learn from them.
"The term 'defensive democracy' scares me, because that in itself is opening the door to a dictatorship. If the government thinks that they know what is good for the people, but the majority of the people disagree, it will quickly become like the Soviet Union – with an Iron Curtain and 'People’s Democratic Republics.' I consider myself a liberal democrat, but I’m a stickler for democracy even when it doesn't serve my personal interests, and that goes all the way.”
Can you explain what you mean by this?
"The current protest movement, as it escalates, is moving in a bad direction, doing things like calling on people to evade military service and blocking roads, which we on the left spoke out against during the disengagement [from Gaza in 2005]. I don't know exactly who the leaders of the protests are, but statements such as 'we will not surrender and we will not give up' can become problematic. Also, the more rules they break, and the less willing they are to play within the boundaries of a liberal democracy, the more anxious I become."
It Doesn't Matter Who Started It
Elbashan does not spare the government from criticism either. "This is a very significant change that cannot happen in this way. You don't have to make wholesale changes all at once, but bit by bit. It's a living system. It's like, for instance, if you fix a major highway, you don't completely close it down. You would do a segment at a time."
But Yariv Levin isn’t doing it that way, he’s pushing for a dramatic change with no holds barred.
"Yariv Levin managed a great achievement – making it clear to everyone that reform is necessary. One of the reasons that Levin moved so quickly is because he knows that the Israeli legislative system is great at diluting changes and taking care of those who want to make the changes. That was the case with previous Ministers of Justice like Yaakov Neeman and Haim Ramon.
"What's important is to voice a different point of view, one which says, 'It doesn't matter who started it, we refuse to follow you down the road of extremism. It won't help – in the end you need to reach a compromise.'"
The Reform, Reviewed
Prof. Elbashan reviewed the elements of the reform, described the gap between the parties, and expressed his position on the main issues in dispute.
One of the most controversial measures in the reform is the so-called "override clause," a mechanism that would allow a simple majority of 61 out of the 120 members of the Knesset to override Israel’s quasi-constitutional Basic Laws.
What do you think of the override clause?
"On its own, I’m very much in favor. Someone who believes in liberal democracy cannot believe that there is anything above the people. The debate between 61 and 70 [MKs required to overturn a Basic Law] is a joke. People don’t understand. Most of the coalitions in Israel were above 70."
But in practice, most laws were passed by a majority of less than 61.
"In a law like the Nation-State Law, [a Basic Law which was passed in 2018], you don't see a real problem in gathering the required majority. What is required? If we establish that only the Supreme Court can disqualify laws, not just any court, and then only by a certain majority, I think that it needs to be the full bench that rules on the disqualification, because this is a trampling of the will of the people. Out of the full bench, say out of 15 judges [the current size of the Supreme Court], a majority of at least 11 should be required to overturn a law.
“In such a situation, the other side is that if the Knesset wants to legislate anyway, what is important is the cooperation of Knesset members from the opposition. I’m not inventing anything new – for instance you have this in the Impeachment Law – which states that 10 Knesset members from the opposition are required [in order to impeach a member of the Knesset]. In my opinion, it should be between five and 10 Knesset members from the opposition, according to the number of judges you require for disqualification.”
And what about changes to the electoral system?
"This is the most critical thing. Regarding all the election laws, the override clause cannot apply to them. Even if 120 members of the Knesset want to enact a law stating that the elections in Israel are postponed for two years, the Supreme Court needs to be able to cancel it; the holding of the elections must be immune from being overruled. This is the role of The Supreme Court, and we must keep this rule in place."
The government’s proposal would remove the ‘reasonability standard' as a legal grounds for the Supreme Court to overturn government actions. What are your thoughts on that?
"I’ve been talking to people on all sides for three to four weeks now, and I see almost no difference of opinion. Everyone understands that the use of the 'reasonability standard' since 1980 has been excessive. Its use should be restricted to only be allowed in very unusual cases, and the matter of ministerial appointments should not be subject to the reasonability standard. You can intervene in appointments if the rules of the law are not met, such as when there is corruption, nepotism, or conflict of interest. You can’t just say that an appointment is unreasonable based on how the judge views it. The problem with the reasonability standard is that the courts would approve one appointment and reject another, without us lawyers understanding why."
How about the proposal to end the seniority system for appointing the President of the Supreme Court?
"This is not very controversial. Everyone knows that the advantage of the existing system is that they will know in advance who the next president will be, and that the main disadvantage is that there will be people who are not suitable for the position. They may be great jurists and excellent judges, but they are neither leaders nor politicians, and as president of the Supreme Court they have to deal with all of these things, and that’s not easy. We once said that it was worth paying the price to prevent an internal war between the judges, today many think that it should be changed. I don't see a big debate on this issue."
And the status of legal advisers of government ministries?
"Many legal advisers got confused and drunk on power. They got confused between their role to represent the law, and a role that they took upon themselves to determine what is right and what is wrong. 'The minister recommends and we decide what is right for us.'"
So what is the solution?
"It's really simple. I would build a double chain of command: each minister could appoint their own legal adviser, but the Attorney General could fire them. Or vice versa – that the Attorney General could appoint legal advisers and the minister could fire them. In this way, the legal advisers would constantly be required to serve two bosses, which is precisely their role: to represent the law, and to help the minister enact the policy for which the people elected him."
What about the Committee for the Selection of Judges?
"This is the most complex question, and here the dispute is more difficult to mediate. Is the current system successful? The fact that no one else in the world has emulated us tends to make me think it is not. I would push back on the idea that the existing system of the Committee for the Appointment of Judges is sacred and untouchable, because the results are not good. In my opinion, the Supreme Court is not diverse enough, nor does it have enough judicial 'firepower.'"
Which communities are not being represented in the current system?
"There are no Mizrahi judges. Especially not Moroccans. And even more, there are no Arabs in the Supreme Court. Now there is a Muslim, thank God. The other group that is missing – Haredim, is a more complex story. I was aware of the efforts made by Aharon Barak to bring in Haredim, and they weren’t interested. The younger generation is simply too young. There were Sephardic judges, and there were Iraqis. But no Arabs, and no Mizrahi or Arab women. Unlike groups such as Ethiopians or Haredim, who entered into higher education at a later stage, Moroccans have studied law almost since the 1950s. The committee did not create diversity. For years there was one seat for a religious judge, and then it expanded."
Religious people aren't overrepresented?
"I would actually look at it according to class division. With all due respect, I do not see a big difference in perceptions and values between those who send their children to a secular elitist high school such as the high school next to the university in Jerusalem, and those who send their children to a religious elitist high school such as Himmelfarb in Jerusalem, or Zeitlin in Tel Aviv."
What do you mean by judicial "firepower?"
"In the last twenty years, this committee has not been able to bring in judicial stars, mainly because of the type of compromises that were required all the time. The American Supreme Court grew at the time because of judges like Ruth Bader Ginsburg and Anthony Scalia. They gave it the shine it needed, and for us Aharon Barak gave us that same sense of brilliance.
"Everyone knows the story of Prof. Ruth Gavison, who could have contributed legal greatness. But it wasn't just her who was disqualified. Anyone who was a little bit different, who was a little controversial, or who dared to say substantive things – that is, someone who lived in society, and who felt obligated to contribute to society – they weren’t accepted. Then you might get someone else who doesn't want to challenge the status quo, someone who doesn't bother with what’s important in society, well then I'm not sure that this person should be a Supreme Court judge."
So how do you solve it?
"What everyone accepts is that the representatives of the Bar Association should have left a long time ago. Even without the sex-for-appointment affair, there is the potential for corruption that must be obvious to everyone. The chairman of the Bar Association is an unpaid position, and whoever holds the position continues to work and represent clients. The judges know that this position influences the committee. So the Bar chairman says 'I don't try cases,' but their partner from the office does. We all know these methods, and I don't buy them. Everyone knows how it works. That is why the representatives of the Bar Association should go. We need people who have retired, or who have not been represented for a long time."
At the moment it is being proposed not only to exclude them, but to give an automatic majority to the coalition.
"The proposal gives too much power to the coalition, and to me this is not good, but here I don't have an ideal solution to which is better. The current situation is not good, and [MK Simcha] Rothman's proposal is not good. Amongst all the other proposals, I have yet to hear a proposal that I can say of it, this is the best proposal."
What do opponents of the reform think of your stance?
"I detest double standards. Those who detested protesters blocking roads in response to the Oslo process and during the Gaza disengagement, cannot accept them now. I was on the team that fought against the fact that the state-religious schools took students out to demonstrations. It is not permissible for institutions that receive public funding to use their staff and students to fight against the state's decisions. So how is it today that high school principals in Tel Aviv do the same thing, and that at Tel Aviv University they do the same thing?
"For that community, disengagement was the foundation of the house. A liberal democrat must rise to the challenge of standing up for the rules even when they are not in their best interests. In my opinion, too many people on the left fall for it time and time again. They speak highly of democracy and majority consent, until it reaches places that hurt them, and then suddenly the capitalist has much more power than the ordinary voter. And whoever calls themselves a leftist, goes to talk to a friend and the credit rating drops. In my eyes, this is inappropriate. This doesn’t mean that there shouldn’t be any protests. The government is acting aggressively, but the protests should be according to the rules of the game."
This article was translated by Rose Angela.
