In this edited transcript of her conversation with BICOM Director Richard Pater, Vice-President of Research at the Israel Democracy Institute Professor Suzie Navot argues that judicial reforms proposed by the right-wing bloc – to Knesset override of the Supreme Court, executive immunity, and the appointment of judges – threaten Israeli democracy and the already fragile separation of powers.
Israeli Democratic Structures in the Era of Rising Global Populism
Israel is a unique country when it comes to dealing with the dangers of populism and democratic erosion. The constitution and structure of Israel exposes it to these dangers even more than in any other democratic country, because in other countries there are mechanisms, there are tools, which decentralise political power.
In every country, you have checks and balances between the powers. You have – with the exception of two or three countries – a rigid constitution. You have the splitting of the legislative authority into two houses. You have, in presidential countries, the right of veto, given to the president, of legislation, or a federal structure or a regional electoral system. And sometimes, like in Europe, even the existence of international organisations and courts. All of these are part of the checks and balances, and none of these exist in Israel. So, we are unique among free countries in not having any tools for the decentralisation of political power.
The most important problem in Israel, especially following these elections, is the fact that unlike any other place in the world, any ordinary majority in the Knesset can enact, amend, and delete any Basic Law – or any law – in a normal law-making procedure, in three readings, and even within one day. Which means that the politicians in Israel – and only in Israel – have the possibility to change the constitutional rules of the game at any time- between the system of government, the nature of Israel. All you need is the magic number of 61 because it’s not only the minimum number needed to form a government, a coalition, but also all you need to change Israel’s constitutional arrangement, to change the authority of the court, the system of government: to become a presidential state, or a monarchy, a non-democratic state, or to limit or even delete any human right. That makes Israel really very problematic when we are talking about the dangers of populism and the power – or the absolute power – of the ruling coalition.
The Override Clause and the Limits of Executive Power
In Israel we have the Basic Laws which are above the normal laws; they have constitutional status. But they are very easy to amend, so it’s not exactly a constitution similar to other countries around the world. For example, we have two Basic Laws dealing with human rights, but human rights in the Basic Laws are not absolute. The Knesset may limit them or may infringe upon rights according to the needs of the state or the rights of others. Like in every other place, rights are not absolute. But, in order to limit these rights, the rules are very clear and have been established in the Basic Laws themselves. It is provided, for example, that the Knesset may limit human rights if this limitation or infringement is proportionate and is for a good or proper purpose.
These have been the rules of the game for thirty years. So, if the Knesset wants to enact a law that violates human rights or limits them in a way that is very extreme – for example, to overrule privacy or deny the right to go and protest in the streets – it would be an unconstitutional law, and the Supreme Court may judicially review it. Over the last almost thirty years, about twenty laws – or mainly sections of them – have been declared void or unconstitutional by the Supreme Court.
The override is an idea that we copied from Canada, and it is a section that will allow the Knesset to enact laws that infringe human rights, even if these laws are disproportionate and for a wrong purpose. Under the most extreme current proposals, if the court declares void a law that infringes human rights in a way that is extreme or disproportionate, then the Knesset, by a majority of 61, will be able to enact it again, because this is the will of the majority. It may sound democratic to some people, but democracy is not only the rule of the majority – definitely not! Democracy is also an effective protection of human rights, especially the rights of minorities. And, therefore, the override rule is actually intended to allow the Knesset to overcome us– it’s about our rights; the people. It will allow our rights to be limited in a disproportionate way: the right to equality; freedom of speech; perhaps a woman’s right to her body; freedom of religion or the right to property.
This is very problematic because even in those rare cases in which the court exercises its power to judicial review, if this override clause is passed, then the Knesset would be able, with a normal coalition majority of 61, to re-enact the law, and it will remain in effect. It means that a political majority will always be able to deny the minority its rights. And you know what Lord Acton said: that power corrupts, and absolute power corrupts absolutely. So, this is a problem of the override clause.
Now, having said that, I am not against it. I think an override clause may be suitable for Israel in a very specific context, as a part of completing the constitution, a compromise between all of the sectors of society, and a compromise that we give constitutional protection to our institutions: to the Knesset, to the Supreme Court, to the government, and, of course, to the rights and fundamental values of the state. At the moment, we do not know what kind of override clause the new coalition is thinking about – whether it would be an override clause that would be a part of the Basic Law on human dignity and freedom, or whether it would be a specific override clause in a new Basic Law to be enacted. And therefore, we do not currently know what they are talking about when they say override.
Judicial review of laws in Israel is not written in any Basic Law but follows a monumental decision by the Supreme Court in 1995. Since then, the court possesses powerful judicial review, but this power has been used with restraint, and very carefully, over the last twenty-five years. Only around twenty laws have been declared unconstitutional. But if you are looking for a section in the law where it says that the court may judicially review laws and declare them unconstitutional – we do not have it.
The Knesset has been trying to enact a Basic Law dealing with judicial review and with the legal status of basic laws, the procedure for their enactment etc. since 1975 with no results: the “missing” Basic Law: the Legislature, . In the last government, the Minister of Justice [Gideon Saar] established a public commission, representing the eight parties in the coalition, to prepare a draft for this Basic Law, and to include a general override clause. Three of the parties involved decided to send professionals to the commission instead of politicians. I was asked by the Labor Party to take part in this committee, and of course I agreed because it’s like a dream to be able to take part in the in the drafting of the most important Basic Law in Israel.
But we encountered two problems. The first is that not all the parties in the Knesset were represented – only the coalition parties, so it was difficult to speak about a compromise. The second problem was that we only had four sessions and then the Knesset decided to disperse. So now it’s over. If such a Basic Law was passed, then perhaps a specific override clause might be suitable, but it would be a mechanism that would not apply to certain basic rights. I think that you cannot infringe upon the core of human dignity, for example. You cannot limit the right of access to the courts, the right to vote. Also, it must be established that the Knesset’s ability to override would be limited in time, for example, the law which would be passed through the override clause needs to be voted by a large majority of MKs (80 for example) and this law will be valid only for four or five years. If we are educating a generation on the idea of constitutionality, then we may allow the idea of an override, but only for a transitional period, perhaps for the first 10 years after completing the Constitution.
The Israeli System in the International Context
Israel is a mixed system and is very distinct. Until 1980, Israeli courts were bound to follow British judge-made law. Everything that happened in Britain we knew, we had to learn, and to teach. This article was abolished in 1980, but even so, the custom of following British and American tradition still prevails. And the status of everything in the legal profession is far more similar to England or America than to Germany or France. Now, the structure of our legal system is influenced by common law, and we do not have judicial review – as Britain did not have until the Human Rights Act. Judicial decisions here are considered a source of law; binding precedents, like in Britain. The structure of the judiciary and the rules of evidence and procedure are very similar to the corresponding systems in common law. But we still have a mixture of influences, and we like to copy things from all over the world, even without thinking about the outcomes.
We took the idea of the override from Canada and now we’re speaking about the Norwegian Law of allowing ministers to resign from the Knesset and new MKs to enter in their place. We had a biannual budget like in Bahrain, and we are talking about the French Law, granting immunity [from prosecution] to a sitting prime minister. This is something that Israel likes very much to do: “okay, let’s do what they’re doing”, without thinking “are we really so similar to Canada? Are we really so close to this system in France, to the culture? Are we really like the British people, who have the culture of “it is not done”? But this is Israel- it’s a unique country, and we really have a mixture of influences.
Executive Immunity and the Slow Pace of Criminal Cases
The Religious Zionist Party wants to restart or reboot the legal system, with several ideas that add up to something very similar to the legalisation of corruption. This is because they do not only want to erase the crimes of fraud and breach of trust but to also enact the ‘French Law’ which, if passed, will prevent investigation or indictment of a sitting Prime Minister during their mandate. They also want to expand parliamentary immunity and to prohibit the court from dealing with any kind of decisions regarding immunity. So, in a way, it means that there will be no equality before the law, which I think is fatal for the rule of law.
I agree that the crime of breach of trust [of which Netanyahu stands accused and which some argue is too imprecise] is very vague. If you read the crime in the criminal law, it says that a public servant who in the performance of his duties commits an act of fraud or breach of trust that harms the public, shall be punished by three months in prison. That is very vague. But this offence is our basic tool in the fight against corruption, because it means that public figures and public servants are not allowed to pursue personal benefits from the office; that the power that he receives from the public, from us, is for the welfare of the public and not for his own benefit. So, they must not act in a conflict of interest.
We constantly speak about the problems of the legal system but the problem of the legal system nobody is talking about is the time it takes for criminal proceedings in Israel- cases that we’re hearing for five, six, or seven years in court. The investigation against Netanyahu started in 2017 and the indictment was filed in January 2020. And now we are in November 2022 – almost three years since the indictment was filed – and we are hearing, I think, the twentieth witness out of almost 300, which means that we are still at the beginning of the presentation of evidence in the District Court. And, of course, this case may be appealed by both sides before the Supreme Court.
This is really a problem. Netanyahu’s case – if it continues – could last at least another three or four years. What kind of justice is it if you have a citizen that has a cloud above his head – a dark cloud of a criminal indictment – and has to wait for five, six, or seven years, and then perhaps be declared innocent? This is the problem, but the proposals of the Religious Zionism party are not dealing with it. They are dealing with the power: we want more power, and we want to limit the power of the Supreme Court.
Balance in the Appointment of Supreme Court Judges
The Supreme Court of Israel is not only the Supreme Court of Justice. The Supreme Court mainly deals with appeals from the District Courts, meaning that it is also the Criminal Court of Appeal and the Civil Court of Appeal for the country. The composition of the Supreme Court selection committee seeks balance.
Editor’s note: The committee is currently comprised of a panel of nine: four politicians (two from the government, two from the opposition); two members of the Israeli Bar Association; and three sitting judges. Advocates for reform propose increasing the political quota.
And the fact that a majority of seven out of nine is required usually leads to a compromise and the consensual selection of candidates.
The balance between the professional and political is very important in Israel because it preserves the independence of the judges. And in Israel, as I said before, unlike most democracies, the judiciary is the only factor restraining the power of government. Unlike most democracies, in Israel there is no entrenchment in the constitution of the several arrangements that guarantee the independent status of the judges, for example: their tenure, the date of their retirement, the way they are appointed. Everything can be changed by a simple Knesset majority. The Supreme Court of Israel could be erased by a regular Basic Law that passes by a simple majority of two versus one – it does not need even 61.
I don’t think the committee selection method is unusual and it can be seen as part of a global trend that is moving to selection models that are similar to the Israeli model, with representative members from several authorities. For example, many appointments committees include professionals – or in consultation with professionals – in Britain, Greece, Canada, Australia, France, Belgium, Austria. In these cases you need cooperation between the authorities or a very, very large, mature majority of the parliament, which not only includes the government, but also the opposition.
Therefore I think the proposed changes to selection are a real threat to the independence of the judiciary in Israel. It’s here, as part of the plan of Religious Zionism, which actually means they propose to erase everything that is independent and professional and objective in the public system. They want the judicial system to be theirs, for the politicians in power. It is very problematic for Israel because the Supreme Court is the only branch – the last branch – with the power to limit government.