When Do the Proposed Regime Changes Go Into Effect? Position paper #10

The Israeli Law Professors’ Forum for Democracy, an ad hoc, apolitical, 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, and to undermine the independent status of the attorney general legal advisers to the government and to governmental ministries. Following Position Paper No. 9 on the Knesset’s authority to amend basic laws, this Position Paper examines the restrictions on approving amendments to Basic Laws and focuses on the question of when such changes go into effect under law. 

The conclusion of this Position Paper is that the proposals for amending Basic Law:The Judiciary constitute an abuse of power, in light of the clear conflict of interest for the majority coalition. Therefore, even without addressing the question of whether the proposed changes harm the core values of the State of Israel—and in our opinion they do—at a minimum, the proposed changes should only go into effect beginning with the next Knesset.

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The Knesset’s authority to amend basic laws: Summary of Position Paper #09

The Israeli Law Professors’ Forum for Democracy, an unincorporated and voluntary group of experts on Israeli law and, specifically, on Israeli public law, is gravely concerned about looming initiatives to undermine the independence of Israel’s judicial branch of government, to subordinate it to the partisan and party-driven political considerations of the government, and to curtail the independence of civil-servant ministerial legal counsels to the government and its ministries.

This position paper focuses on the following question: does the majority in the Knesset have unlimited power? We reject the assertion that the Knesset can simply call any legislative act as a “basic law”, and thereby assume the authority to legislate absolutely any content it deems fit. We argue that Israeli law sets limits on the Knesset’s powers, and that if the Knesset were to overstep those boundaries—as will be the case if it enacts the proposed changes—that legislation would be null and void.

The policy paper holds that the Knesset’s legislative powers are restricted in two main aspects: the first is empirical, namely that broad agreement, both within the legislature and in the public, is a prerequisite for amendments that remove existing restrictions on governmental powers. The second is a substantive restriction, according to which amendments to basic laws must be consistent with the basic tenets of democracy.

We contend that even if the proposed changes to Israel’s basic laws may enjoy the support of the contingent majority in the current Knesset, they undermine the basic principles of democracy and are not widely accepted by the public. Therefore, we conclude that the Knesset lacks the power to enact them.

A detailed position paper in Hebrew is available on our website.

The Government's Regime Transformation Proposal & the Venice Commission: Position Paper #8

In this position paper we analyze the changes proposed by the 37th government in light of the positions of the Venice Commission.

The European Commission for Democracy through Law, better known as the Venice Commission, was established in 1990 in order to advise the Council of Europe on issues concerning the rule of law and strengthening democracy.  The Commission’s role is to provide information and advice to members of the Council of Europe in legal matters and to assist them in bringing their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law.  In 2002 the Commission’s statute was amended so as to allow states that are not members of the Council of Europe to become members.  Israel joined the Commission in 2008.

Examination of the Commission’s reports and shows that these steps are flagrantly incompatible with the best practices identified by the Commission in at least three respects: the system of appointing judges, the procedure for constitutional reform, and respect for the rule of law.  If these proposals are adopted Israel will stand alongside countries like Poland, Hungary and Turkey in relation to which the Commission has published negative reports in recent years.

This brief review shows that the measures being furthered by the Government of Israel in order to change the constitutional regime of the country, amount to a clear violation of the fundamental values that lie at the heart of the legal principles identified by the Venice Commission.  The measures are a manifest breach of the minimal standards that the Venice Commission set out regarding appointment of judges, the proper process for constitutional reform, and the principles of rule of law in modern democratic countries.

It must be stressed that the Venice Commission holds that constitutional changes must be seen in their entirety and in the particular political context. When seen in this light the government’s proposals are particularly problematic.

Adoption of the proposals will make Israel a member of a dubious “club” of member states, whose constitutional and legal structure departs from that accepted in modern democracies.

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