The Israeli Law Professors’ Forum for Democracy, an ad-hoc and voluntary group of experts on Israeli law, and specifically Israeli public law, expresses its grave concern due to the unprecedented attack on the rule of law and democracy in Israel, following the intention of Israel’s 37th Government to rewrite the scope of judicial review in Israel.
● The Coalition’s proposed amendments to Basic Law: The Judiciary involve a radical transformation of the relations between the branches of government, eliminating all effective judicial checks on the legislative power of the governing majority.
● The proposed amendments pave the way to uninhibited governmental action in disregard of human rights and the public interest, and they jeopardize the most fundamental democratic principles and processes.
● Statements that these proposals recognize, for the first time, the courts’ authority to perform constitutional judicial review are false. In fact, the proposals eliminate constitutional judicial review and provide the governing parliamentary majority, which is controlled by the executive branch, a host of means to prevent judicial review, to disregard it, or to override it.
● The proposals grant the legislature unlimited power to enact Basic Laws—in a simple majority and by normal legislative procedure—and declare these Basic Laws immune to judicial review.
● The proposals entail transforming judicial review on ordinary legislation into an extraordinary and impracticable procedure that requires the agreement of a vast majority of Supreme Court justices.
● According to the proposals, judicial review can be overridden by a normal coalition majority of the Knesset.
● The combination of these components, compounded by the other parts of the constitutional and legal changes proposed by the government (most notably reforming the appointment of judges and justices, diminishing the role of the Attorney General and government legal advisors as gatekeepers, and diluting judicial review in cases of patently unreasonable exercise of government power) remove any legal restrictions on governmental action. Such an uncontrolled government contradicts the fundamental democratic principle of checks and balances, and will irrevocably harm the Israeli democratic system. These proposals exceed the authority of the Knesset which cannot abolish democracy by amending its Basic Laws.
A detailed position paper in Hebrew is available on our website.