What's this "Judicial Reform" crisis really all about?
Professor Yaniv Roznai explains all the components of the proposed Judicial Reform step by step. What would each do? What's the argument for? Against? And if it passes, has Israel really changed?
Ordinarily, we try to ensure that Israel from the Inside covers many different dimensions of the mosaic known as Israeli life. We do politics and security, but art and literature, poetry and music, NGOs begun by fascinating and devoted people. And much more. We’ll continue doing that.
These days, though, with Israel in one of its greatest internally divisive moments in history, and without a doubt in the throes of its most profound “constitutional” crisis ever, we are focusing a good deal on the government’s proposed Judicial Reform.
In Hebrew and in English, one hears everything from “it mimics a lot of what already exists in Europe” to “if it passes, Israel is no longer a democracy.” And lots of views in the middle. But what almost all of us have in common is that we don’t fully understand what the nature of the Reform is. It’s not just “judicial review” or the appointment of judges. There are four basic elements to it, some of them with sub-elements.
So, to make sense of this, so that those who wish to understand can do so fully, we spoke with Professor Yaniv Roznai, Associate Professor and Vice-Dean at the Harry Radzyner Law School, and Co-director at the Rubinstein Center for Constitutional Challenges, Reichman University. Roznai holds a Ph.D. and LL.M (Distinction) from The London School of Economics (LSE), and LLB and BA degrees (Magna cum Laude) in Law and Government from the IDC. Professor Roznai's scholarship focuses on comparative constitutional law, constitutional theory, legisprudence, and public international law, so he is perfectly suited to explain all this to us, block by block.
For an additional take, beyond our conversation below, feel free to watch this relatively brief video conversation between Dr. Yohanan Plesner, head of Israel’s Democracy Institute, and Yaakov Katz, Editor in Chief of the Jerusalem Post.
Introduction to our audio conversation follows below.
In today’s episode, which we’re making available to everyone, we discuss two of the four components of the Reform: (1) the selection of judges in all of Israel’s courts, not just the Supreme Court, and (2) the “override clause,” or Judicial Review.
In Wednesday’s episode, which will be available to paid subscribers, we discuss (3) the “reasonableness test,” which the Reform proposes to abolish; we look at its history, its role, and how it was used more than once with Aryeh Deri. Then we discuss (4) the proposal that ministers be allowed to appoint their own legal advisors, instead of the current system which Roznai describes. This change, says Roznai, is in many respects the most important of all, even though it’s gotten less press. He explains why.
Finally, in Wednesday’s episode, we discuss two additional matters: (5) the much ballyhooed suggestion that the Attorney General has the authority to remove the Prime Minister as being unfit. Is that true? Is it only partially true? Could it happen now? And then, the biggest question of all: (6) if the proposed changes pass, is Israel still a democracy?
The link at the top of this page will take you to the recording of the first episode, in which we cover (1) and (2). There’s a transcript below (just scroll down a bit) for those who prefer to read. The rest will appear on Wednesday for subscribers.
It’s not simple to understand all this, but stick with it. It’s the only way to be an informed participant in the conversation. And enjoy the learning!
Impossible Takes Longer, which addresses some of the above themes, will be published this April. It’s available now for pre-order on Amazon and Barnes & Noble.
As many of our regular listeners know, our goal in Israel from the Inside is to show and address the entire mosaic of Israeli life. We talk about politics, we talk about security, but we talk about poetry, we talk about literature, we talk about history. We talk about all different sorts of kinds of things, because that's what makes up a society. It's not only about politics or security or any of those issues. A society is made up of much more. In the last few weeks, of course, though, we have been focusing much more directly on the proposed judicial reforms by the Netanyahu government, by Yariv Levin, who is the Minister of Justice now. And we're doing so because we are hearing so many different voices as to whether this is actually dangerous, whether this isn't actually dangerous, and because there is so much misinformation out there about what is actually involved in these proposals.
So, in order to really get to the bottom of this and in order to enable our listeners to hear from a real expert as to what these judicial reforms entail, and then we'll hear afterwards, how dangerous are they, how not dangerous are they, we're speaking today to a real expert, Yaniv Roznai. Yaniv Roznai is associate professor and vice dean at the Harry Radzyner Law School, and co-director at the Rubinstein Center for Constitutional Challenges all at Reichman University. He holds a PhD and an LL.M with distinction from the London School of Economics, an LLB and BA degrees, magna cum laude in Law and Government from what was then called the IDC and is now called Reichman University. In 2015 to ‘16, he was a postdoctoral fellow at the Minerva Center for the Rule of Law under Extreme Conditions, and he has been at New York University and at Princeton University. He has lectured at universities all over the world Italy, Spain, et cetera. We won’t go into the whole very long, very impressive list. His scholarship focuses on comparative constitutional law, constitutional theory, legal jurisprudence, and public international law. And I think the comparative constitutional law issue will be particularly important in our conversation because we can learn a lot about these proposed changes from how similar changes have or have not worked out in other kinds of countries. So, first of all, Yaniv, thank you very much for taking time and coming to Jerusalem from Tel Aviv to have this conversation. I really appreciate it.
Thank you for having me.
You're going to teach us a lot. So, I have a list here of four basic changes, and I think that's how Minister Levin has actually put it out there. He says, I've got four stages to my plan, and so we'll go according to his. Although I know that you think that some of them, for example, the override clause, are actually a cluster of changes, not just one change. So, what we're going to do is we're going to go change by change. I'm going to ask you to explain what the change is. Then what I'll ask you to do for each of them is to make the argument of, quote unquote, sane people on both sides. There are obviously extremists on the left and extremists on the right. Not interested. But what do people who are solidly, learned and opposed on the left think? And those people on the right who care about Israel, who care about democracy, who are in favor of these reforms, how do they justify it? And when there are instances when there are things that have been tried in other countries, let's hear about that too, so we can kind of put it in perspective.
Now, the first change that I understand Justice Minister Yariv Levin as part of the Netanyahu government wants to make is in the makeup of the panel that chooses judges. And it's going to be changed to, some people say, watered down sectoral representatives. What is the current situation now as to how judges are selected? What is the proposal? Why do they want to change it? And what do you think about the proposed change?
All right, this change deals with the way the judges are selected. We have a selection committee.
Are we talking about all judges or Supreme Court judges?
All judges all over the country. All over the country, even in the lower courts, all judges. So, all judges are selected by a special committee composed of nine members, three Supreme Court justices, two ministers, two members of the Knesset, usually one from the opposition, one from the coalition, but not necessarily so, and two members of the bar.
The Israeli Bar Association.
Israeli Bar Association. This is crucial. I'll come back to that later. Now, in order to be appointed to the lower courts, an ordinary majority is enough. In order to be elected to the Supreme Court, you need a majority of seven out of nine. And this is crucial because this ensures that no branch dominates the process or controls the process.
Because you cannot be appointed without the votes of each of those branches.
Exactly. So, the judges have veto power, but also the politicians have veto power. And this requires an agreement between the politicians and the justices about who can be appointed to the Supreme Court.
Now, the politicians are really four, right? Two members of Knesset and two ministers.
Yeah. So, two ministers and two members of the Knesset. So, four politicians. And we need to remember that in our system, unlike the United States, the government basically controls the coalition. So, it's not that they are very independent in that respect, and this is crucial. Now, the change that is proposed is to extend the entire commission to eleven, to take out members of the bar association…
To take the two of them out and instead to put just two members of the general public who would be chosen.
The Minister of Justice will appoint them.
Okay. Hardly a random selection.
Exactly. And to add two more politicians, one minister and another member from the coalition, in other words, eight out of the eleven will be basically politicians or elected by the politicians and only one from the opposition. So, seven out of the eleven will be basically the coalition.
And you need how many votes according to this proposal?
This would be enough to appoint….
Seven out of the eleven would be enough?
Yes. So basically, the coalition will dominate completely the appointment of judges to all ranks. To the lower courts, to all the courts. Now, to my mind this means complete politization of the judicial process and of the appointment process. Now I'll explain some of the pros and cons. One of the arguments in favor of this change is that but what do you want? This is what happens in all modern countries, western democracies, the U.S., we know, is a political process, the Senators approve and the President… and we have in Germany the parliament selects the judges and in Canada also the government elects the judges to the Supreme Court. This is all true, but God is in the details, or the deal is in the details.
Depends on your theological perspective.
Exactly. So, the thing is, if you look in other countries, it is true that it is often the politicians who elect the judges to the high courts. But it is not the coalition or the government that controls it. It is either usually a combination of two different branches, like in the US. Executive and the legislative. But also remember, this is a federal system. So, there are some decisions by the Supreme Court, for example, the Dobbs decision on the abortion. It has a limited effect in the states because each state can decide to have, for example, yes, to anchor the right for abortion. But in Israel, once the Supreme Court would say something….
It applies to everybody.
Exactly. And there’s no other alternative. So, there are some distinctions here in other countries, for example, like in Canada, it is true that the politicians elect the judges, but they do so only after a recommendation by a professional committee like the one more or less we have. So, five out of the last nine supreme Court justices in Canada were selected by a committee that is composed mostly by judges and lawyers. Of course, it is not binding, but Trudeau basically accepted their recommendation. And in Germany, for example, you need a majority of two thirds in parliament. So, the coalition must reach some kind of an agreement with the opposition
Because the coalition is not going to have two thirds of the votes.
Exactly. But this is not what's proposed here. So, this is one negative thing. Now, what I do understand is that there are claims that our Supreme Court has not been diverse enough, for example, or is not reflective enough of the Israeli society. For many, many years this has been the case. And I do believe that we need to have a much more diverse Supreme Court. I think that actually this will happen naturally, even without touching the way judges are selected, simply because since we've opened law schools all around Israel, the entire judicial system is now much more diverse. And with the years this will reach naturally, this will reach the Supreme Court. The Supreme Court now is much more diverse than it has been 15 years ago. But if you want diversity, this is not the way to get it. Because if you allow the government to simply select the judges, they will select those judges that they think that resembles the government. This will not bring diversity. If you want diversity, you need 20% Arabs, for example, more or less, and you need half women. This would not necessarily be the case. So, I think first, this will be horrible because this will undermine the quality of judges that will be appointed. This will bring politization to the entire judicial system and this will crush the public confidence in the judicial system. You know, I hear people say or I heard the Minister of Justice himself saying that one of the purposes of the so-called reform, which is to my mind, understatement of the century, is to strengthen the public trust or public confidence in the judiciary.
Which is now fairly low, correct?
Now it stands this year it stands on 42%, much lower than it's been. It is still more or less like the public trust in other courts, in other countries, more or less. However, the public confidence or public trust in the politicians, for example, in the Knesset is 19%. In the parties it is 8%. So how exactly would politicizing the process of the judicial system would enhance the public trust? It would just crush it. So, this is one point that I think is highly problematic. Now, I think we can think of other changes of this judicial system. I don't know, for example, to insert academics inside, or I don't know, we can think of maybe bringing in former justices from lower courts to the process. There are many things we can think to improve it. This process, I think, is much better than the alternatives. Of course, it can be improved. Now, I want to say a few words about the members of the bar. On the one hand, it adds professionality to the process in the sense that who knows better than judges? Who knows whether judges come ready to trial, whether they are serious, whether they have the proper temperament, those lawyers who come to trial, not the politicians. But also, we need to remember that this adds another democratic element. Israel is the number one country in the world in the ratio between lawyers and population. We have a lawyer for 250 people in Israel. In Tel Aviv, where I come from, it's one lawyer to 25 people.
Is that really right? One out of 25 people in Tel Aviv is a lawyer?
Yeah. And this adds also democratically, you know, I don't know, element to the entire process because who are the lawyers? It's us. It's we, the people. And we need to remember that.
So now, some people, I've heard, say that with the current system, with the commission of nine people in which you need seven votes, and the Supreme Court has three justices there, they say that effectively gives the Supreme Court a veto on new judges. And they say, but in the United States, it doesn't really matter what the sitting justices thought about Kavanaugh. It's not up to them to accept or not accept Kavanaugh. The justices should have no role in deciding who gets added to their court. How strong an argument is that? And if it's a weak argument, what are the problems with that argument? Should the justices have a veto power? Have they used the veto power? Have they always voted as a three-person block? What's the history on this?
So, people say that they do vote as a block. I'm unaware of that, but simply because I don't know what happens inside the rooms. We need to remember the Israeli Supreme Court, unlike the U.S. Supreme Court and unlike other constitutional courts, for example, in Europe, and this is crucial, our Supreme Court is not a constitutional court.
What does that mean?
A constitutional court is a tribunal mainly in the European countries or in the continental system or tradition that deals only with constitutional matters. In Israel, the Supreme Court is…
An appeals court and appellate.
Exactly. But actually, about over 60% of the of the things that the Court deals with are criminal appeal, civil appeal, administrative appeal.
And this goes back to the British era, right? It was the British who instituted this, making sure that the same tribunal, the same court, would be both the highest court of appeals and, so to speak, a Supreme Court. Right. This is not our invention. It's the British invention.
Exactly, like a common law tradition that existed in many common law countries. So, what's important here is the professionality we need to get good jurists, good lawyers who will become judges. It is less of importance whether person is conservative or liberal or religious or secular because he needs to deal with criminal law appeals. So, yes, we had about, I don't know, 20% or 25% are constitutional matters. And for that, because there's a lot of balance of values, I would say that it would be important to reflect the public. But it is not that important. So, I think, first, this is crucial. In the US, the judges choose these 200 cases that are most important. In Israel, they deal with 10,000 cases a year.
The Supreme Court itself deals with 10,000 cases a year.
Yeah. So, I think it is important to hear or to have a view of the politicians. And this is why the politicians also have veto power, but it's also important to get the view of the judges.
Okay, so this is the story about of the battle over the panel that will select judges and again reminding everybody that's true of judges from the Supreme Court all the way down to the lowest level courts in the country. The second major change, which I think is the one that's gotten the most press, at least in the English language press, I think, is the override clause, because that's what everybody talks about. It's the end of judicial review. And without judicial review, one doesn't have a democracy. So now explain to us a little bit about what the current situation is in the override, what the proposed change is in the override, and whether in fact, you agree with the assessment that the proposed change would actually mean the end of judicial review and therefore the end of a Western functioning democracy. And finally, whether some change is in order, even if the proposed change, in your opinion, if you think that we'll hear in a minute, goes too far.
Okay, so the current situation is as follows the Israeli courts, all courts conduct strong judicial review, like the US. All courts, even the lower courts.
Lower courts can do judicial review?
Yes. If there's a law that violates the basic laws of human rights, any court can say that this law is unconstitutional.
Is that true in, like, for example, the United States also?
Okay, so this is where my non legal training shines. But if it's a lower court in the United States…
But if it’s a lower court, the decision will only apply to the parties. If it's the Supreme Court, this will apply to everyone.
Okay, so if it's the case of the person that didn't want to bake a wedding cake for a gay couple, for example, if that decision had stayed in the lower court, then that decision would have affected the baker and the plaintiff, and that would be the end of it. But if it goes to the Supreme Court, then it becomes the law of the land?
Okay, I'm going to law school. Okay, good. So that's the situation now.
That's the situation now. And we need to understand, I think, first, I think that the lower courts hardly deal with these issues. You can hardly find, I think in 30 years you can find maybe ten cases where courts said that some pieces of laws are unconstitutional, but it is basically the domain of the Supreme Court. But also here, one needs to be honest that the Court has been extremely restrained in applying this power. So, for example, since the enactment of the Basic Laws of Human Rights 1992.
Which is when judicial review sort of entered the system, right?
Yes. Judicial review came three years later, in ‘95, with the famous Mizrahi Bank case where the Supreme Court said that, yes, we have the power of judicial review…
Based on the law that was passed in ’92?
Exactly. So, since 1992, the Knesset enacted 4000 laws. The Court has invalidated 22 provisions of legislation, not even complete laws. This is what we're talking about. So, on average, less than one piece of legislation in a year. So, I don't really think that there is a serious problem.
Well, why do people who think there's a serious problem think there's a serious problem? Is it all politically motivated? Are there any serious jurisprudential scholars who think that the current situation is problematic?
I will say why. Because if you examine these 22 cases, in some cases, the Court blocks the government from achieving certain policies. So, for example, when the government wanted to put asylum seekers…
Throw them out of the country, basically, right?
Not to throw them, but to put them for three years in something that is like prison without a criminal trial. The court said, well, this is unconstitutional. You cannot take a person's liberty even if you think he entered the country in an illegal manner without a criminal trial. You can't put him in such a facility for three years. This is disproportionate. And then they said, so this was one case, and then the second round said, you know what? It won't be for three years, only one year. And the Court said, no, you don't understand. Even to take a person and put him in a prison for a year without a trial, this is unconstitutional. And then this was the second time. And then the government said, okay, you know what? We will not call it a prison. We will call it an open facility. But they have to sleep there, and they need to sign in morning, noon and evening. And this facility is located in the middle of the desert. And the Court said, you're doing here a “shtick”. You're bluffing. It's still a prison. And this was the third time they invalidated that law. So, the government is upset because the government says, we want to take care of these illegal person who came illegally to the country, and they're pissed. So, the way I analyze it, the government is upset that they don't have a blank check to do anything they want. That's basically it. But if it's not the Court, then who would protect those minorities rights who don't have representation in the Knesset, right? Or take for example, the law that says it was called the Arrangement Law, the law that allows taking of private property in the territories.
What does that mean? Who could take whose private property?
The settlers, for example, in the West Bank wanted to build on private land, and everyone said this is unconstitutional. The legal advisory said this is unconstitutional and refused to protect it in the Court. And the Court indeed declared that law is unconstitutional for violating the right to protest.
The law was going to allow it?
The law allowed it. Yeah. So here, the Court, to my mind, saved Israel from itself, from the ICC, the International Criminal Court, et cetera. And this is again another case out of the 22. Now, let's say that I accept that the Court has received lots of powers in the last 30 years. That is without a doubt true because it's not just a constitutional revolution that allows the Court to invalidate legislation, but there is broad standing. Every person can come directly to the Court even if his rights are not violated.
In other words, just so people understand, the United States, correct me where I'm wrong here, if you want to go to the Supreme Court, there has to be a Court case between two people. And then the Court, the Supreme Court will eventually hear it. Here, for example, you could have an ambassador of a foreign country appeal to the Supreme Court on behalf of something, even if they're not personally a litigant in the case.
It’s not just a matter of litigant. If you want to go in the US to the Court, you need to have your own rights or interests violated. Now, if I wake up in the morning and I open the newspaper and I read something that I don't like, I can go directly to the High Court of Justice on that, even if it doesn't involve you personally. This is broad standing
When did that start?
It started in judgments of the Court in 1980s, early to mid 1980s.
Who was the Chief Justice at that point?
Okay, so it's not a Barak revolution.
Well, Barak was their judge, and so they were both pushing for that direction. And you need to add to that also the matter of justiciability that everything is justiciable in Israel. There is no political question doctrine like in the US. If it's matters of security, military law and religion, international relations, basically the Court can deal with everything.
Is that different than other countries?
I think in some countries, like the US or let's say the UK, the Court will not deal with matters of international relations or military as long as it doesn't deal with fundamental rights. Now here the Court has to do that because we have the occupation, because we don't have separation of state and church, obviously. So, matters of law and religion get to it all the time. And also, because international tribunals deal with, for example, the defense or the world depends on how you want to call it… separation barrier. So, the ICJ dealt with this issue. The International Court of Justice. So, obviously we need also our Court to deal with it. The court cannot say they will not deal with this, while other international or supernatural tribunals deal with this matter, I have to engage with it also in order to assist Israel. Now, let's go back to the override and the change. Now, in the Supreme Court, an ordinary bench of the judges, let's say 3,5,7,9 et cetera, in an ordinary majority can declare that a law is unconstitutional. What they want to change is the following, and it's a combination of three things. The first one is that only the Supreme Court will be able to conduct judicial review and will be able to declare a law is unconstitutional only with a full bench of 15 judges and only when twelve out of the 15 believe that a law is unconstitutional. This is one thing, and this thing will basically mean that there will be no effective judicial review.
Well, in cases where the Court has struck down laws in the past and those 22 instances, was it typically by a wide majority or not by a wide majority?
That's a tricky question. In the early years, this was mainly with an extended bench of, let's say, at least seven or nine judges, and usually in a supermajority. So, either all the judges agree or there is one or two dissent, but in a good majority. But this was before. Our Court has become much more diverse with the recent conservative judges that former minister Ayelet Shaked appointed. So, for example, the recent case was invalidation of law five versus four. Okay? So, because now the Court is more diverse than ever, it's going to be…
It’s going to be harder to get those kinds of supermajorities.
Exactly. Now, just in a comparative perspective, this thing hardly exists in the world. I think it exists only in Chile and Peru. Okay. By the way, in the proposal of the chair of the Constitutional Law Committee that proposed an alternative proposal for him, it has to be 15 out of 15 judges. This means that there will be no judicial review. This, by the way exists only in El Salvador, not a thriving democracy.
Yeah, not what we aspire to.
Yeah, exactly. So, this is one change. This is one change that is important. The second change is what we've mentioned. The override clause, the override clause would mean that even if now the Supreme Court has held that a certain law is unconstitutional, 61 members of Knesset will be able to override the decision of the Court and enact that unconstitutional law. By the way, in the alternative proposal of the Constitutional Law Committee, this override can also be preemptive. So, for example, now we are drafting a law and the legal advice of the Knesset says this law, this bill is prima facie unconstitutional. 61 members of Knesset can say, well, okay, we still want it, and simply write notwithstanding Basic Law, Human Dignity, we want this law, and this would be the end of it. It will be shielded from judicial review and it will be valid anyway. Now, because we have this thing, this design that would limit judicial review, I'm not so worried about the override simply because we will not get to the override. There will hardly be any instances of laws that will be declared as unconstitutional. Even then, even if there will be, then a majority of 61 will be able to override. Now, we need to understand the Israeli setting. We have 120 Knesset members. 61 is a majority that any coalition automatically possesses. But it's more than that because who controls the coalition? Five or six leaders of the coalition who control the coalition through coalition discipline. This basically means that whatever these five or six politicians want, this will happen. And I've mentioned several pillars. So, it's the limitation of the ability of the Court to invalidate laws. It's the override.
And there's the Basic Law. But before we get to the Basic Law, let me say a few more words about the override. Look, the override is a mechanism that hardly exists in the world. It doesn't exist. It exists in three countries: Canada, Finland and in Israel in Basic Law Freedom of Occupation. I can get to that later if you want. Now, in Canada, this was inserted as means to enable the provinces to agree to a complete Charter of Rights. So, they told Quebec, for example, they told them, listen, agree, or consent to this new Charter of Rights in 1982 and in return we will allow you this override mechanism that if there is something that you don't like, you can override it. This has never been used at the federal level. This override doesn't apply on all rights. So certain political rights, or for example, nondiscrimination gender equality or equality aboriginal minorities, the First Nations, this is something that cannot be override. But this is precisely what will be overridden in the Israeli case. Because in the Israeli case the override is supposed to apply on all rights, the right to life, private privacy, liberty, property equality, on all fundamental rights. And this is crucial.
The other country I've mentioned, Finland, if you want to enact a law that is unconstitutional in Finland through the override mechanism, and you want it now, you need a majority of five sixth of the parliament. So, it basically means 100 out of 120 Knesset members. So, all these comparisons are ridiculous because they only take one element, mainly the negative one, that gives powers to the government without the limitations or without the protection of rights, which is problematic. So, if you would go Canada style and they would tell us, you know what, take a complete Bill of Rights with equality and freedom of religion, et cetera, and everything okay, we can talk about it. Let's complete our constitutional project, and then we can talk about overrides. But they're not doing that. So that's the override. Now, the third element…
Third element of the second change.
To keep everybody's map clear, the first element was the changing of the panel that chooses judges. Now we're talking about the override clause in general, and we've talked about two of the elements of that. Now we're getting to the third one.
Exactly. So, the third one is the statement that there will be no judicial review of Basic Laws themselves.
Which are kind of quasi constitutional laws. In Israel, we don't have a constitution, but the Basic Laws sort of make up a quasi-constitution.
Exactly. Now, we need to understand it is problematic for an American audience this would seem crazy. How can we review amendments to the constitution? But we need to understand that in the Israeli case, to enact a new Basic Law requires no special process. There are no limitations on it. So, for example, no substantive limitations. In Germany, even if 100% of the politicians want to amend the constitution, they cannot touch human dignity. Okay? There are no temporal limitations. In Italy, if you want to amend the constitution, you have waiting periods of, let's say, three months between the readings to make sure that there are proper deliberations, that this really reflects a deeper wheel, et cetera. And there are no procedural limitations. In the U.S., if I want to amend the Constitution, I need to get two third on the federal level and then three quarters of the states to ratify it. It's almost impossible. So, we had 27 amendments in over 200 years. In Israel, only in the last decade, we had more constitutional changes than the entire U.S. history. Now, the idea is that in order to enact a Basic Law, it's an ordinary process of legislation, so you can do it in one day in a simple majority.
So, what makes a law a Basic Law is just that I put at the top of the page, “this is a Basic Law.”
Spot on. The title needs to say basic law. So, imagine you can put anything you want under this label and this will shield the law from judicial review.
This has happened elsewhere, right?
So it happened, for example, in Hungary, once the Fidesz Party got the majority, the two third majority they needed in parliament to amend the constitution, they simply started to enact all kind of laws that were previously declared as unconstitutional. For example, a law that said that being a homeless is a criminal offense. They simply inserted it into the constitution to shield it from judicial review. So, take all this together to limit the ability of the court to invalidate laws, to have an override clause, and to limit the ability to review basic laws. This basically means a complete abolishment of effective judicial review.
And when you hear people out there saying that without judicial review, you don't have a democracy. Is that a fair claim? Do all Western democracies have judicial review in some meaningful way? Does England have judicial review? So, is that a fair claim that without judicial review it's not a democracy?
So, it's a fair and unfair claim in one important sense. It is true that there are some well-functioning democracies without judicial review. For example, New Zealand, the UK. But and this is an important but there are other mechanisms that ensure protection of fundamental rights and ensure that the political power is not centered in one organ. Let's look at all democracies around the world. They all have different mechanisms that ensure proper checks and balances. Either two houses in parliament, either presidential systems with veto power, either original election element. So, if I'm the representative of Bristol in the parliament, right, I can push back because what I care is what the region wants. For example, federal systems. So, look at Australia and Canada and Germany and the US we have a vertical separation of power between the central government and the states that can push again from the bottom or subordination to some kind of supranational organizational tribunals-- the EU or let's go back to the UK. So, it is true that the Supreme Court in the UK cannot invalidate laws. However, if I'm a British citizen and my rights are violated, I can take the train to Strasbourg, to the European Court of Human Rights against my country.
And what about before the European Union?
No, it doesn't deal with the European Union.
It’s got nothing to do with the EU?
Nothing to do with the EU. This is part of the Council of Europe that is an organization of 46 European countries.
When was this instituted?
1952. It's part of the European Convention on Human Rights. And all those 46 countries are subordinated to Strasbourg so whatever the European Court of Human Rights says the country must abide with now. Let's go back to the UK. So, in the UK, we have this subordination to the European Court. We have two houses in Parliament that can somehow…
Does the House of Lords really have any capacity to….
Yes, because they can postpone legislation for about a year, but this ensures proper deliberation. If they're sounding problematic, they stop it. But there's also a British tradition, political tradition, of certain things are simply not done. Now they wanted to change or to limit the power of the courts, they appointed a special committee that set for six months that gave a report, and eventually the report was, you know, okay, maybe we don't need to go with these change. This is how you do things. And also, so the Supreme Court in the UK can only declare laws as non-compatible with the European Convention of Human Rights without invalidating them. But the vast majority of such declarations were abided by the politician. So, when you have politicians that abide by what the Court said, you don't need a strong judicial review. Israel is the only democracy in the world without any of these mechanisms. The only one.
So, there's no bicameral, there's no multiple levels, there's no supranational organization, there's no separation between executive and legislative, none of that.
Nothing. We have a government that controls the Knesset. The only checks on governmental powers are the judiciary and the legal advisory. And these are the two bodies that this reform aims to completely weaken.
Okay, that's exceedingly helpful. So now we have looked at the first two of the four proposed changes. The first one was the issue of the panel that chooses the judges. The second was the override clause, which you divided into three different parts. The second part of our conversation, we're going to look at the second set of two changes. The third one, which is the reasonable test, which we will hear from you in a minute what that is, and then, of course, this notion of the legal advisors, which we'll come to now.
Music credits: Medieval poem by Rabbi Shlomo Ibn Gvirol. Melody and performance by Shaked Jehuda and Eyal Gesundheit. Production by Eyal Gesundheit. To view a video of their performance, see this YouTube:
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