The dismissal of the Ombudsman: This is what happens when both political camps look at the glass half empty

In the SD

In recent days, the controversy over legal reform has resurfaced in full force. Once again, both sides are entrenched in their positions, and the feeling is that this is a foregone conclusion, and the constitutional crisis is inevitable. The main problem is not the debate, but that each side sees the other as stupid and/or evil, and is therefore unwilling to listen to their arguments.

Consider the debate over reform that took place about two years ago. A typical ad for reform supporters went something like this: “It’s true that the government may have gone too far, but there’s no doubt that reform is needed.” Conversely, a typical ad for opponents of reform would have said: “It’s true that reform is needed, but they’ve gone too far.”

Note that both sides agree that reform is needed (there is almost no disagreement on this among jurists and the general public) and both agree that they have gone too far (there is almost no disagreement on this either). So what exactly is the debate about? There are of course arguments about dosages, but it is clear that there is no complete uniformity on both sides of the fence. Therefore, there is no doubt that the line of some supporters of the reform is the same as the line of some opponents.

The division is mainly due to the partisan affiliation, for or against the government, against or in favor of the judicial system (unfortunately, it is almost the same division), and in fact, from this division, the parties choose whether to focus on the glass half full or the half empty. However, after this focus, both sides completely ignore the other half of the glass. A situation is created in which both sides feel that there are no arguments at all in favor of the reform – if you are one of the opponents, or against it – if you are one of the supporters. We look at the dispute as a full glass versus an empty glass. And what is the result? Everyone is sure that the other side holds a position that has no basis in arguments. The obvious conclusion is that the other side is evil (wants to destroy the judicial system, or wants to neutralize the elected government) or stupid (does not understand the arguments for or against). This situation intensifies the lack of attention between the parties, and the limbo is strengthened by positive feedback until the destruction is known in advance.

This is also the situation in the debate over the dismissal of the Attorney General. Anyone who examines the government’s arguments honestly and with a willingness to listen (who among you has read the document in which they are explained?) sees that there is substance in them. The Attorney General conducts herself in an adversarial manner (admittedly, to a large extent justly in some cases), and therefore, objectively, it is very difficult for the government to work with her. It is important to remember that this fact is a ground that exists in law for her dismissal. Even jurists who are not supporters of the government say this. A clear example of this is the amendment to the Basic Law on the issue of insolvency. The Knesset Attorney General saw it as a legitimate legal arrangement, but the Attorney General determined that it was so unreasonable that she refused to defend it in the High Court, and at times also prevented the government from receiving other protection in court (another distorted arrangement that must be changed as part of legal reform). After all this, eleven High Court justices rejected (unanimously!), the petition. If this was indeed such an unreasonable arrangement, how did it not receive even a single vote in the High Court? Doesn’t this indicate the Attorney General’s adversarial nature?

But there is also a flip side to the coin. The reason for the Ombudsman’s opposition is the irresponsible behavior, which sometimes borders on breaking the law, of the current Israeli government. Therefore, the opponents are also right in that significant brakes are needed to restrain her, and it is no wonder that they see the Ombudsman’s dismissal as a threat to the rule of law. They are certainly right that the balance between the authorities is very important, and one authority must not be allowed to have too much power, and there is no doubt that the government is indeed taking things too far (the debate is, of course, where the balanced line is).

What we see before us is an escalating tango of two sides, each of which acts in an extreme and irresponsible manner, and therefore the other side is “right” in its extreme (and irresponsible) response.

The unwillingness to listen and discuss the arguments in their entirety, and as a result, seeing the other side as evil and/or stupid, are among our weaknesses. I want to be naive, and suggest that both sides try to overcome their many (and mostly justified) prejudices, and objectively examine the arguments here and there. I think that if you examine them, you will find that you agree on almost everything.

If we manage to manage the discussion on the content and not on the personalities, there is a chance of preventing the constitutional crisis and perhaps even reaching an agreed reform.

Originally published in the newspaper “Makor Rishon”