Without EU safeguards, will judicial reform turn Israel into an illiberal democracy?

Without EU safeguards, will judicial reform turn Israel into an illiberal democracy?
The Supreme Court building and the Knesset (Parliament) in the background, Jerusalem, Israel. Credit: Wikimedia Commons

The demonstrations in Israel on Saturday evening against the government proposal for a judicial reform gathered hundreds of thousands of people from all sectors of society but did not immediately convince the government to suspend the legislation process and start a dialogue with the opposition parties on a consensus solution as proposed by President Isaac Herzog.

On the contrary, the far-right extremist national security minister Itamar Ben Gvir continued to label the demonstrators “anarchists” and entered the police headquarter to interfere in operational decisions on the ground, pressing the police to deal harshly against demonstrators that are violating “law and order”.

During the previous “day of disruption” on Wednesday, the police used water cannons and stun grenades against peaceful demonstrators who were blocking motor highways and were accused of disobeying police orders.

Prime-Minister Benyamin Netanyahu addressed the nation in a TV speech on Wednesday. "Citizens of Israel, the right to demonstrate is a fundamental democratic value; however, freedom to demonstrate is not freedom to bring the country to a halt,” he said.

Warning that “red lines” could be crossed, he compared the demonstrators in Tel Aviv with the violent settlers who had taken the law into their own hand’s and run amok in the Palestinian village Hawara on the West Bank in a revenge attack after the murder of two Israeli brothers who had been travelling through the village.

The rampage was described as a “pogrom” by an Israeli general in charge of security for both Palestinians and settlers in the West Bank. He admitted that the army had misjudged the situation. Without efforts to calm down the situation, there is a risk that the vicious circle of violence will continue to escalate during March, when Ramadan starts, and spiral out of control.

Historical test for democracy

”This is a historical test for Israel’s citizens,” said world-known historian and writer Yuval Harari, the main speaker at yesterday’s mass demonstration in Tel Aviv.

“There is no second time in this test. We have to raise the voice now or we’ll have to shut up forever. History teaches us that citizens are the last and most important defense wall for every democracy.” He defined democracy as a contract where citizens commit to respect the government’s decisions on the condition that it preserves their fundamental rights.

As previously reported, the judicial reform was announced by the new Israeli government after the elections on 1 November last year, following a power grab by ultra-nationalist and ultra-orthodox parties in the negotiations to form the government. The government claims that it has been given a democratic mandate to impose its policies on the minority because it won the elections.

By now, the proposal has sparked wide-spread protests and demonstrations in Israel for weeks. The opposition describes it as a judicial coup which will lead to regime change. It will have severe implications for the rule of law and democracy in Israel, its economy and security, its international relations, the situation in the occupied territories, and the prospects of a two-state solution.

The head of the opposition, former Prime Minister Yair Lapid, almost accidentally lost the elections with a small margin. “The new government is the most dangerous one in Israel’s history,” he said at a demonstration in Herzliya on Saturday. “We are fighting for the future of our children. We’ll never give up.”

Demonstration in Tel Aviv, 4 March 2023

Package of judicial changes

The new government claims that it wants to restore the public’s trust in the courts by “rebalancing” the branches of power and the systems of checks and balances. The proposed judicial overhaul consists of several parts. The most important ones are the following ones:

Changing the composition of the committee that selects Supreme Court judges, by adding more politicians and giving them the majority in the committee;

Abolishing the right of the Supreme Court to cancel “unreasonable” government decisions;

Requiring a qualified majority of 12 judges of 15 in the Supreme court to disqualify parliamentary legislation that is incompatible with basic laws or fundamental rights;

Introducing an “override clause” which would give Knesset (the Parliament) the right to reinstate legislation with the smallest possible majority (61 out of 120 lawmakers);

Turning the current legal advisors in the ministries from professional officials into politically appointments controlled by the ministers;

In addition, a number of retroactive laws have been enacted or are in the pipe-line, tailor-made to Prime Minister Netanyahu and other ministers’ needs to make them fit to serve in the government despite on-going trials or previous convictions.

Does the government have a mandate to push through the legal reform?

“It depends on what you mean by mandate,” law professor Aeyal Gross at Tel Aviv University told The Brussels Times. “Legally the government can claim that it has a mandate but, in my view, it isn’t legitimate to propose changes that undermine the current constitutional structure.” Gross specializes in international and constitutional law.

His opinion is shared by law professor Ronen Avraham, also at Tel Aviv University Faculty of Law. He has a background in different aspects of American law and studies theories of justice. “Admittedly, there wasn’t much debate about the reform before the election but the reform didn’t come as a surprise.”

“What came as a surprise was the speed and magnitude of the reform and that the government isn’t even trying to reach consensus with the opposition about it. The reform isn’t about a specific policy but about the rules of the games. There should be broad agreement about fundamental changes in the rules.”

Was the electorate aware of the reform and the details before the election on 1 November 2022?

“The reform wasn’t included in the agenda of Likud, the lead party in the coalition, before the elections,” professor Gross replied. “In fact, Prime Minister Netanyahu himself opposed in the past changes to the supreme court of justice.

“His coalition partner, Religious Zionism, published a program for judicial reform before the elections but not in the direction that Likud would have accepted then. The overall direction of the reform might have been known by some before the elections but surely not the details in the current legislative reform package.”

Professor Avraham added that some of the nuances of the reform might have been known before the elections but the general public had no idea about them. “Simcha Rothman wants to have full control of the judiciary and is dismantling the checks and balances,” he said, referring to a Knesset member from the Religious Zionism party who is chairman of the Constitution, Law and Justice Committee in the Knesset.

Is the reform inspired by best practice in constitutional law in the US and other countries?

The US is no doubt a democracy, but it can hardly serve as a model for other countries. A candidate who loses the popular vote can become president thanks to the outdated Electoral College system.  This happened when Donald Trump was elected president in 2016. Dysfunctional voting rules can result in low voter turnout and disenfranchisement of many voters.

“The polite reply to this question is that the US has a written constitution but Israel has not,” professor Gross replied. “The American constitution, though not perfect, can hardly be changed or amended. In the US it’s the president who appoints the judges but they have to be confirmed by the senate, an independent and separate branch of power, often controlled in fact by a party different from that of the president.”

Furthermore, there is no override clause in the US. The American supreme court can strike down any law with a simple majority.

Kohelet Policy Forum, an NGO which describes itself as Israel’s leading conservative think tank and is funded by American donors, is reportedly involved in the drafting of the government’s proposal. Professor Avraham explains that there might be some similarities but there are also differences between the American legal system and the proposal.

“What the government has done is cherry picking from different countries but no other country has all the parts in the government’s proposal. If you want to copy and import something from another country, then import everything.”

Professor Gross agrees. “It’s the combination of the different parts in the Israeli judiciary overhaul which makes it so apart from best practice in other countries and international standards. You cannot find the same combination in any other country.”

In the US, a new administration takes it all (spoil system). Professor Avraham sees a clear ambition by the new government to replace senior civilian servants and control key ministries, the army and the police. Non-partisan legislation in the US can be blocked by prolonged speech (filibuster) in the senate but in Israel it can only be delayed.

There is no impeachment procedure in Israel but a prime minister can be declared unfit to serve for the job (not necessarily on medical grounds). In 2020, the Supreme Court of Israel missed an opportunity to declare Netanyahu unfit to serve as Prime Minister because of the conflict of interest during his on-going trial. The court wanted to wait to see how things would develop and now it might be too late.

“The lack of a written constitution is the original sin in Israel,” professor Avraham said. “It’s absurd how quasi-constitutional basic laws are enacted today, without any special procedures for them.” The new government is attempting to enact retroactive laws by a simple majority and calls them “basic laws” to prevent the Supreme Court from reviewing them.

What are best practices in the system of checks and balances and the appointment of judges?

Professor Gross takes the “override clause” as an example. "It cannot be justified as it allows to trample upon rights of minorities. For sure it cannot be justified without a qualified supermajority in the parliament (Knesset), rather than a thin majority of 61 of the 120 votes, and without restrictions on the rights that can be 'overridden'.”

Only two democracies have an override clause, he says: Finland which requires a much higher majority (similar to the one required in fact to amend the constitution), and Canada, a federal state, where a similar clause has only been used by the provinces of the country and it’s the unwritten agreement that it will not be used by the federal government.

“As regards judicial appointments, today there is no automatic majority for the judges and politicians in the Judicial Selection Committee in Israel. Any decision requires an agreement between them. There is probably no perfect system anywhere but our system is well-balanced as it is.”

Currently the Judicial Selection Committee that appoints the judges in the Supreme Court is made up of 9 members, the majority of which are judges or lawyers: three are supreme court judges (including the president of the supreme court), two cabinet ministers (one of them being the minister of justice), two Knesset members and two members of the Israel Bar Association.

As a least 7 votes are required for a decision, both the government/parliament and the court have effectively a veto on appointment.

We discussed practice in the EU. While no single non-political “model” of appointment system exists, there is consensus in the EU that political involvement in the appointment procedure may endanger the neutrality and independence of the judiciary. A basic rule appears to be that a large proportion of a judicial council which appoints the judges should be made up of members of the judiciary.

Can the issue of the judicial reform be separated from the occupation?

“These are two different questions but in practice closely interconnected,“ professor Gross replied. “The far-right party which is behind the judicial reform has a clear political agenda aiming at annexing the West Bank and infringing on the rights of the Palestinians.”

The Palestinians in the occupied territories will therefore be the most hit by the reform since it leaves them without even the little protection they enjoy today by the Supreme Court. Overall, the court should have done much more to protect them, according to professor Gross. He has recently published a study on the international Law of Occupation.

“In the new system, the government will be able to decide whatever it likes in line with its polices and ideology, without any legal scrutiny by the supreme court.  But the consequences of the reform go much further and will also affect the rights of vulnerable groups and minorities inside Israel, such as Palestinian citizens, the LGBTQIA+ community, women, and asylum seekers.”

Can the reform be prevented or are the Supreme Court and the government on collusion course?

“There is a fear that the changes will be entrenched and difficult to change even by a new government after elections,” professor Avraham replied. “If the new rules are implemented, the current government can even cancel elections or make it more difficult to vote. If for example a decision would be taken to put cameras in polling booths, it could deter voters from voting. There would be no court to stop it.”

Professor Gross replied that he sees at least three scenarios. The unlikely scenario is that the coalition withdraws the most problematic parts of the reform, under pressure of the mass demonstrations and the negative impact of the reform on the economy and security of Israel and its international relations.

Second, the supreme court could use its still existing powers to strike down the reform or the various elements of it because the reform undermines democracy and the rule of law in Israel.

This may lead to a constitutional crisis in Israel and a collusion or stand-off between the court and the government. Preferably, such a ruling should be taken by all or the overwhelming majority of the judges in the court to delegitimatize the government’s proposal.

"Third, it’s possible that the coalition and the opposition will come to an agreement which is acceptable to both sides.”

“But this can be risky if the agreement leaves elements that retain much of the coalition's plan and undermine the rule of law. The current opposition will hardly be able to delete those elements if they would win next elections and the Court may find it harder to strike them down. Furthermore, they’ll have a small chance to win the elections if they would agree to deprive Arab of their rights or effectively  disenfranchise their vote by disqualifying Arab candidates and lists."

What is EU’s role?

Asked to comment on the judicial proposal and its implications for the rule of law in Israel and its relations with the EU, Peter Stano, lead spokesperson for EU’s foreign policy, replied that the European Commission as a rule never comments on ongoing discussions that have not produced final results in third countries.

“The EU is not part of the internal domestic discussion about judicial reforms in Israel so it’s only for domestic actors of this discussion to comment on it,” he added.

While the EU is reluctant to be seen to interfere in internal Israeli politics, it reacts often to negative developments in the peace process and unilateral measures. The spokesperson issued a statement earlier this week where he stated that the EU is highly concerned about the spiraling violence in the occupied Palestinian territory and condemned both the terror attacks and the outbreak of settlers’ violence.

EUs message is that that violence and terror must stop, that all civilians must be protected and that immediate measures of de-escalation are necessary. A similar message was issued on Sunday by five EU member states (France, Germany, Italy, Poland and Spain) and the UK. They added that, “Those responsible must face full accountability and legal prosecution,” a first test of the independence of the Israeli judiciary under the new government.

Individual EU countries are more outspoken.  French President Emmanuel Macron and German Foreign Minister Annalena Baerbock have stressed the common values that the EU and Israel share and expressed concerns about the Israeli judicial reform.  Following a visit to Israel, Lithuanian Foreign Minister Gabrielius Landsbergis said on Friday that he was concerned over the Israeli government’s legislation to transform the country’s judiciary.

“As EU and as a country which is outspoken about rule of law-based environment in the EU, definitely this is something that we are worried about and I had a chance to express that,” he said.

In fact, Israel’s democracy might be in greater danger than EU member states where European values and the principles of the rule of law are violated as in Hungary and Poland. In the EU, the European Court of Justice rules that EU law takes precedence over national law.

The European Commission can start infringement procedures against member states that do not transpose EU law correctly. The Commission carries out peer reviews and publishes annual reports on the state of the rule of law in the member states. It expects them to follow judicial expert advice on how to preserve the independence of the courts.

The European Council can also decide to withhold EU funding to member states or suspend their voting rights in a special procedure.

But Israel is not a member of the EU and does not benefit of any EU safeguards if it makes a turn to authoritarianism and distances itself from the values that were enshrined in its Declaration of Independence. It must rely on itself to take care of its democratic institutions and survive in a hostile environment.

M. Apelblat

The Brussels Times

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