Proposed Changes to the Scope of Judicial Review: Summary of Position Paper #4

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.

The Revolutionary Regime Transformation: A Summary Opinion #5

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.

Summary opinion - Law Profs Forum

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The Proper Procedures for the Enactment of Constitutional Reform: Summary of Position Paper #3

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 enact significant and drastic changes to Israel’s constitutional law without proper procedures.

●      The proposed changes for “reform” of the Israeli judicial system cannot be seen as an incremental stage in the enactment of Israel’s Basic Laws or in their augmentation. Rather, they constitute a substantial and fundamental change to Israel’s constitutional structure, profoundly altering the relations among the judicial branch on the one hand, and the legislative and executive branch on the other. The proposed “reforms” entrench a new set of constitutional “rules of the game”, that are, in practice, largely irreversible, and, as such, should be addressed substantively as the actual formulation of a constitution.

●      Substance aside, the process through which the coalition is passing the legislative amendments constituting the “reform” is not the proper process by which a constitution is created. The process is set to be hurriedly pushed through in the span of a few weeks, led by the coalition without any negotiation or attempt to reach consensus with the opposition, and pays no more than lip service to consultation with the public and experts, despite the strong public protests voiced against the "reform". This represents the exact opposite of how constitutions are to be written. The establishment or profound change of a constitution requires broad consensus, and a procedure different and distinct from ordinary political procedures. Granting agreements the status of constitutional norms (in the case of Israel, in the form of Basic Laws) elevates them to supreme status. It is, therefore, imperative that the processes through which those agreements are reached ensure full participation of the various ethnic, religious and socio-economic sectors of society in the decision-making process, and enable careful consideration of the changes' implications.

●      The proposals presently on the agenda aim to cement fundamental rules of the Israeli regime, yet the process by which they are legislated does not even meet the benchmarks for the proper enactment of ordinary legislation, as members of the opposition and of the public are interrupted and expelled from the parliamentary committee discussions of the proposals without being able to fully present their views. The process through which the government is pushing through its proposed “reform” is, therefore, illegitimate and will significantly impair the legitimacy of the reform, once adopted.

●      We base this normative position regarding the requirement of participatory and careful procedures for instituting fundamental constitutional changes on several grounds: the basic tenets of constitutional and democratic theory; the principles of legislative theory; long-rooted legislative traditions of the Israeli Parliament; and finally, judicial precedent and the basic principles of the Israeli legal system, deriving from its fundamental values as both a democratic and Jewish state.

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