There comes a time in the life of parliamentary democracies when an issue so touches the social nervous system that it is too great to be decided by its elected representatives in the usual manner. Perhaps the best example we have in recent history is that of Brexit, in the U.K., the home and founder of parliamentary government.
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Despite its holding a substantial majority in the House, the British government decided that Brexit was too weighty an issue to be decided solely by the people's elected representatives, and required a vote by the whole of the voting population. The opinions for and against did not divide neatly according to the party affiliations, but across a broad social and even geographic spectrum.
I wish to make the case that a similar moment has arisen in Israel for the need for a referendum regarding both the need for and the precise nature of judicial reform. Furthermore, because additional situations on other weighty, divisive topics in Israel are easily foreseeable, the rules for calling for a referendum and the mechanism for doing so should form part of the current reform. (This author has specific suggestions for the mechanism, but the format of this essay does not provide the necessary space.)
It is not my intent to debate or analyze the need for judicial reform. The government and those in favor can point to a long list of issues on which the Supreme Court has arrogated to itself powers that the Knesset never gave it and whose legal basis is either questionable or non-existent. The opponents argue that the current government is a statistical fluke that has no mandate to take advantage of a small majority to push through legislation of this nature and importance.
However, instead of reasoned argument, we have been treated by the most activist opponents to hysterical and emotional utterances and actions, which have taken us to the point of mob rule and the threat of civil war. The clear intent is to change the government by instigating social chaos, rather than votes in the Knesset.
Moreover, even if the Coalition were to pass the legislation, there is every indication that the Supreme Court would strike it down and place us in a constitutional crisis. This is perhaps the most dangerous aspect of our current situation.
To assure that the public knows precisely what is to be decided, each piece of specific legislation should be brought to the point of a second reading and then frozen by the call for a referendum. According to the polls, 58% of the population supports the idea of judicial reform, although not necessarily every piece of legislation that Levine and Rothman have brought forward. Voting on each of the proposals leaves room for nuanced opposition.
By calling a referendum, the government shows its confidence in the public and provides a voice to all of those who support the reforms, in whole or in part. Currently, the media have assured that only the Opposition is heard through their "resistance" and demonstrations. Since the government does not stand or fall based on the results, the Opposition is forced to provide actual argument with the legislation proposed in order to convince the public to vote "no". This allows especially contentious subjects to be decided without creating continual political instability. Only legislation approved in the referendum can be given a third reading and implemented.
A major advantage of the above proposal is that whatever aspects of the reform are approved, neither the Supreme Court nor future governments will have the audacity to challenge the express will of the populace in a referendum. We will re-establish the principle that in a civil democracy, we decide matters at the ballot box, not by who summons the largest mob in the street and creates the most chaos. The votes of the elite and the rest of the population are all counted equally.
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