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 over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this position paper we examine the claim made by proponents of the regime changes in Israel according to which the appointment of judges to the New Zealand Supreme Court is determined exclusively by the politicians from the governing parties.
Our findings: The claim that the procedure for appointing supreme court judges in New Zealand is controlled exclusively by politicians, let alone politicians from the governing coalition parties, is mistaken and misleading.
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 over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this position paper we address the expected detrimental effects of the antidemocratic regime changes on Israeli Academia, on institutions of higher education, on faculty members, and on students’ rights.
We find that:
· In light of international experience, the content of coalition agreements, the bills currently being prepared for legislation in the Knesset, and declarations by various Ministers - there is ample cause for concern that the reforms being promoted by the government will compromise research and teaching in institutions of higher education in Israel, and the international status of Israel’s academia will suffer as a result.
· The damage to Israeli academia has severe implications for Israeli democracy more generally since democracy cannot be sustained without academia. Given academia’s unique role in promoting democracy, damaging it may render the antidemocratic regime overhaul irreversible.
· In the absence of an independent and effective judiciary, the academic community and students will have no protection against abuse of government power, and especially against possible violation of the rights to equality, academic freedom, and free speech.
· There is substantial danger to academic faculty’s occupational security, conditions of employment and ability to perform academic research freely and professionally.
· Specific groups in academia are especially susceptible to harm, including adjunct professors, untenured faculty, women, Palestinians, and others.
· Institutions of higher education are likely to incur various harms—including with respect to their budget, to the quality of research they are able to perform, and to the quality of students they will enroll.
· The reforms might also infringe upon students’ rights—their academic freedom and free speech on campus. The threat to the status of Israel’s higher education might also result in “brain drain”, whereby highly capable students will choose to study abroad.
The full paper is available in Hebrew.
[1]* We, members of the Israeli Law Professors’ Forum for Democracy, hold different academic views regarding the details of the various reforms proposed by Israel’s 37th Government to change Israel’s democratic regime. However, we are united in the opinion that the host of the government's proposals - which are an unprecedentedly severe attack on the independence of the judiciary, the Attorney General and government legal advisors, the police, the military, and public broadcasting - will seriously damage the rule of law and Israel's democratic character. Therefore, we joined this forum to make our professional opinion available to the public at this fateful time. The position papers or other professional materials produced by us reflect the prevailing position among the members, even if they are not unanimous. The list of Forum’s members and all position papers on our behalf are available at https://lawprofsforum.org. Follow us on Twitter: https://twitter.com/lawprofsforum. Contact us: lawprofessorsforum@gmail.com.
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 over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we consider the legal avenues available for effectively halting the legislation concerning the constitutional overhaul.
· The Prime Minister’s declaration that the second and third readings of the bill introducing changes in the judicial appointment process will be postponed has no legal effect.
· Without a binding legal guarantee for the halt in legislation, the current negotiations are overshadowed by the constant threat that the legislation will be completed with the coalition’s majority promptly, and at any time.
· It is therefore essential that the halt in the legislation be legally guaranteed so that it cannot be undone suddenly and unilaterally. Such a guarantee will achieve several important goals: it will relieve the negotiations of the pressure of imminent legislation, it will ensure that the negotiations proceed in good faith on the part of the coalition, and it will foster greater trust between the parties, thus increasing the chances of reaching a broad consensus on the matters at hand.
· Any postponement that depends solely on the discretion of the Speaker of the Knesset or of the Chairperson of the Knesset’s Constitution, Law and Justice Committee leaves in place the threat of sudden unilateral completion of the legislation, and thus undermines the possibility to hold proper negotiations.
· There are ways of giving legal validity to the decision to halt the legislation. One is for the Knesset to pass a decision to freeze all constitutional legislation (effectively modifying the 1950 Harari Decision). Another is to change the Knesset Rules of Procedure, which can be amended by the Knesset by a simple majority, to restrict its power to legislate on these matters while negotiations are taking place.
· The most rigid, and therefore best guarantee for stopping the legislation, would be to legislate a law, or preferably a Basic Law, imposing a moratorium on legislation concerning constitutional arrangements while negotiations are taking place; or, alternatively, a law entrenching the existing Basic Laws, to shield them from amendment by the coalition’s simple majority.
· This paper sets out the various mechanisms, their legal implications, the ways in which they could be implemented, and their limitations. It warns that negotiations that are not founded on a binding moratorium on completing the legislation will be constantly overshadowed by a threat that will prevent reaching the broad and free consensus required for constitutional arrangements.
