Israel’s new Government is currently advancing a host of far-reaching constitutional and legal changes. The Israeli Law Professors’ Forum for Democracy analysis of these proposals leads it to conclude that their adoption will irrevocably harm the Israeli democratic system.
At the center of the currently proposed changes lie several statutory amendments to Israel’s Basic Laws dealing with:
Granting the majority in Israel’s Parliament - the Knesset (i.e., the coalition) absolute control over the appointment of judges and justices to all courts - The proposed legislation changes the composition of the judicial selection committee, granting the coalition an automatic majority in decision on judicial appointments. This change undermines the independence of the judiciary, harms judicial professionalism, and will lead to the politicization of the judicial process.
Preventing effective judicial review of Knesset legislation - Under the proposed “reform”, the Israeli Supreme Court could find a statute unconstitutional (i.e., in contradiction of Israel’s Basic Laws or constitutional principles) and therefore void only by a unanimous decision of all members of the court (or, according to another version, by a majority of 80%, namely, given the court cohort - 12 of the 15 justices). Furthermore, the Knesset could “override” the power of judicial review with its guaranteed majority in the Knesset. In addition, Basic Laws would be immune from judicial review, regardless of their content. These changes will drastically harm the ability of the Court to protect human rights and the foundational principles of democracy.
Diluting judicial review of the executive power of the government and its ministers - According to proposed legislation, patently unreasonable decisions by government, ministers, and other executive agencies will no longer be grounds for judicial review of these decisions. This change may pave the way for the use of governmental power in a flawed, arbitrary, or biased manner, and without proper consideration of human rights or public interests.
Significantly diminishing the role of the Attorney General and government legal advisors as gatekeepers - The proposed legislation revokes their status as the authorized interpreters of the law for public authorities, makes the status of their legal opinions non-binding, and allows state officials broad access to private legal advice and representation before courts at will. According to declarations by government officials, they intend to alter the appointment procedures for government legal advisors, rendering the process politicized and unprofessional. These changes will enable the government and its ministers to exercise their powers in violation of the law, and may foster governmental corruption and endanger economic stability.
Alongside the weakening of the external review by courts and the internal supervision by legal advisors of governmental actions, the newly elected government promotes other measures that will further consolidate excessive and unchecked power in the hands of the executive branch, including strengthening the hold of politicians over the police and the military, shutting down the public broadcast corporation, and restricting the activities of civil society organizations.
The opinion of this Forum is that each of these changes on its own grants excessive power to the coalition majority. While balanced reforms in the Israeli legal system may be considered and promoted, the proposed changes are far from balanced. Far worse, the combination of the changes together will lead to the concentration of almost unlimited power in the hands of the government, which already currently controls the Knesset, and going forward will be able to control the judiciary as well. This amounts to significant infringement of the fundamental democratic principles of separation of powers, the rule of law, and the protection of human rights. In other words, the amendments to the legislation, if passed, will fundamentally change the system of democratic government as it currently exists in Israel.
A necessary, even if insufficient, condition for the adoption of legislative amendments that fundamentally change the system of government is their acceptance by broad consensus, within the framework of a proper procedure that includes in-depth discussions and the participation of all the relevant political and professional stakeholders. The procedures the coalition is currently taking fall far short. The legislative amendments are being promoted in unprecedentedly accelerated and flawed procedures that deviate from accepted legislative practices, bypass legal advisory mechanisms, and prevent in-depth professional and public discussion of each of the amendments individually, as well as the cumulative consequences of all the amendments as a whole.
In an attempt to legitimize the amendments to the legislation, government officials claim that the amendments do not deviate from the accepted norms of other democratic countries. This claim is false. Although some of the legal arrangements that the government is currently promoting exist in democratic countries, there is not a single democratic country in the world where a combination of all these arrangements exists. Moreover, in most democratic countries there are other mechanisms in place to limit the power of the executive branch, such as a comprehensive and rigid constitution, two legislative houses, a presidential system of government, federalist structure, regional elections, or subordination to supra-national courts that protect human rights and basic democratic principles. In Israel, however, none of these checks and balances mechanisms exist. Selective borrowing of arrangements that strengthen the government’s power in foreign countries without the arrangements and mechanisms to balance them will create a flawed legal structure in Israel, and will place it alongside countries that have experienced an acute democratic backsliding in recent years, such as Turkey, Hungary and Poland.
Finally, it is important to emphasize that the changes being promoted by the government to the governmental and legal regime may be irreversible. The weakening of the balance and control mechanisms will enable the coalition majority to take, unhindered, additional steps that will entrench its rule for many years to come. Some of the plans that appear in the coalition agreements or recently pronounced by coalition members, indicate intentions to reduce the freedom of expression of opposition members, to exclude from the school curricula content on democracy and human rights, and even to amend Basic Law: The Knesset in a way that would prevent parties currently in the opposition from participating in future elections. As evidenced by the experiences of other countries of the world that have experienced democratic backsliding, limiting the power of the courts is expected to be only the first step on the way to abolishing democracy altogether.
The Israeli Law Professors’ Forum for Democracy calls on those in the government and the Knesset who are not willing to take part in the crushing of democracy, and to anyone who has the ability to influence, to stand up against the intention to carry out a regime revolution which would grant the government almost unlimited power and infringe the civil and moral strength of the State of Israel, as well as its international standing.
Download the Forum's summary opinion: