Controversy Sparks in Israel over Fear of Rule of Law and Human Rights BackslidingHadeel S Abu Hussein
Recently, Israeli constitutional law outlined the vulnerability of the Israeli legal system to systematic constitutional threats by the religious right-wing government led by re-elected Prime Minister Benjamin Netanyahu. This exposes Israel’s legal system to rule of law and human rights backsliding – what is it all about, and why is it happening now? In this blog, I will outline the proposed legislative amendments, which comprise a series of laws that would endanger Israel’s democratic institutions and jeopardise its constitutional and judicial protection of the rule of law and human rights. I will explain the puzzle of Israeli constitutional law in an attempt to critically expose the potential implications of this legislative plan while shedding light on the country’s vulnerable constitutional structure, which makes it an easy target for rule of law and human rights backsliding.
The simple and direct explanation is that Israel’s present government coalition is abusing its power because it enjoys a majority comprising 64 out of 120 members of the parliament (hereafter: the Knesset). Its core purpose is to maintain, on the one hand, its nationalist Zionist vision as a Jewish state and, on the other hand, its religious agenda. To provide some context, in Israel the ultra-Orthodox are exempt from the obligatory military service (see here). Therefore, the religious parties are endeavouring to protect the ultra-Orthodox from serving in the military by attempting to overrule a Supreme Court judgment against this exemption. The Supreme Court judgment stipulated that this exemption discriminates against other Israeli’s who are required to serve in the Defence Forces. Furthermore, given the ongoing criminal trial against Netanyahu for corruption charges, his personal interests may inform a desire to manipulate the structure of the Supreme Court, which might ultimately hear an appeal in his case.
Nonetheless, we need to dig in deeper to understand the situation better. In that case, the starting point will be 11 January 2023, when Yair Levin, the current Minister of Justice, published memoranda outlining a proposal for a legislative plan (see here and here) – the first of two significant steps in this constitutional reform including major reforms in two Basic Laws. This legislative plan was widely seen to be an attempt to end the constitutional and judicial protection of the rule of law and human rights in Israel, and it presents a threat to the state democratic institutions. As a result, vast spontaneous protests have been taking place all over Israel for 29 weeks in the form of weekly demonstrations on Saturday nights by citizens calling to save their democracy, the rule of law, and their human rights. The discussions were deferred only during the Passover break. However, they were renewed after the Knesset resumed its sessions on 2 April, and the legislative plan will be discussed until the end of the Knesset summer session on 30 July 2023.
Israeli Fragile Constitutional Structure, a Brief Overview
To understand the proposed legislative plan and why it is controversial, it is first essential to provide a brief overview of Israel’s constitutional structure paradox. The 1948 Israel State Declaration of Independence proclaimed that the newly established state of Israel would have a formal written constitution. However, a political decision was made not to draw up the constitution on one occasion. In its place, a compromise was reached in 1950, which stated that the Basic Laws would be laws enacted by the Knesset. The decision was made to adopt a series of Basic Laws, which ultimately formed the written constitution. Following this decision, several Basic Laws were enacted, such as Basic Laws dealing with the different branches of government. Nonetheless, those laws were not entrenched with any constitutional status and could be amended by a regular parliamentary majority like any other type of legislation.
However, in 1992, due to the constitutional revolution that occurred as a result of the ratification of two Basic Laws dealing with human rights, the Supreme Court dramatically changed its course. In 1995 United Mizrahi Bank v. Migdal Cooperative Village (1995), the Supreme Court held that all Basic Laws have constitutional supremacy over regular legislation, meaning that they enjoy a superior normative status compared to regular legislation, and all the Basic Laws have a higher constitutional status. As such, any parliamentary legislation is subject to judicial review, and the Supreme Court might challenge any legislation conflicting with Israel’s Basic Laws. This makes the judicial review a powerful tool to observe, maintain, and protect democracy, the rule of law, and human rights. Furthermore, any amendments to the Basic Laws need a special majority of the Knesset members to pass, unlike the regular laws, which only require a simple majority.
The Proposed Restructuring of the Judiciary
The proposed reform today in Israel is controversial mainly because it proposes amendments to Basic Law: The judiciary (1984). This Law stipulated that the appointment of judges is through a judicial appointment committee that comprises three Supreme Court justices, two government representatives, two members of the Knesset, and two representatives of the Lawyers’ Bar. The new proposed reform suggests several changes. The first tier of the proposed reforms focuses on restructuring the judicial appointment committee: it suggests enlarging the number of Knesset members in the committee to three – to be chosen by the parliamentary committees. Typically, the head of two of those parliamentary committees are members of the government coalitions, unlike the present situation where the Knesset members choose them. Secondly, it is proposed that the number of government Ministers is also increased from two to three. Thirdly, instead of the Lawyers Bar representatives in the committee, the reform proposes having two public representatives chosen by the Minister of Justice. According to the proposal, seven out of 11 representatives of the judicial appointment committee would be controlled by the government, meaning that the government will determine all future Supreme Court judges. In addition to the approval of six committee members to appoint a Supreme Court judge, a majority of nine committee members would be allowed to remove a Supreme Court judge.
Proposed Restructure of Judicial Review Process
The second tier of the controversial proposed reform challenges the Supreme Court’s judicial review process of legislation that opposes Basic Law in a democratic state. The new reform will enable the regular majority in the Knesset to introduce provisions in primary legislation that contradict Basic Laws. By using an ‘override clause’ even if that law has been invalidated by the Supreme Court. Hence, according to which the said law would be valid despite the provisions of the Basic Law, or the judgment of the Supreme Court. In other words, the Knesset majority can apply this ‘override clause’ and re-legislate a law struck down by the Supreme Court as unconstitutional, as long the statute explains that it is valid despite the Supreme Court decision. In summary, the proposed legislative reform significantly disempowers the Basic Law as a constitutional guarantee. Furthermore, on the 24 of July 2023 this amendment proposal to the Basic Law: The Judiciary passed by the Knesset which will reduce the power of the Supreme Court of Israel.
The decision to limit the Supreme Court and its judges’ power is unsurprising since it has a dominant role in judicial review. Consequently, this is one of the main reasons why the Supreme Court has been unpopular among the far-right parties in the current government coalition, as the Court attempts to play a critical role in promoting human rights. Some of its decisions deal with unpopular topics such as asylum seekers or land issues, or with the rights of marginalised minorities such as Palestinian Arab citizens of Israel, women, and the LGBTQ community. As a result, the Supreme Court has prevented the Knesset from legislating on those issues to undermine human rights. That being said, the Supreme Court has also played an active role in maintaining the state agenda at times and has contributed somehow to the marginalisation, racial discrimination, and prolongation of the Occupied Palestinian Territory (see here and here). That fact, however, does not justify destroying the Court’s judicial review process by the proposed reform. Despite its shortcomings, the Supreme Court, in one way or another, still plays a crucial role in promoting fundamental rights and protecting the rule of law and democracy.
Consequences of Proposed Reform
There will be far-reaching consequences of this reform if it is approved due to the fact that the government coalition as an executive branch has effective control over the Knesset. As mentioned above, the proposed ‘override clause’ would be an indirect end to judicial review and weaken the constitutional and judicial protection of human rights and the rule of law guarded by the Supreme Court in Israel. Is this a typical manifestation of rule of law and human rights backsliding, as it results in a populist majority in the Knesset and the exercise of political power by corrupt politicians with no restraints on their use of governmental power? The peculiar situation where the Basic Law enjoys constitutional status and supremacy over regular legislation, while also being legislation in the same form and created by the same procedure and requiring the same majority as regular legislation makes Israeli constitutional law vulnerable to a majority coalition. It also makes it easy to misapply constitutional power, indicating the power abuse that the current government coalition seeks with this proposed reform.
Lastly, I hope that the public protests will awaken and inspire active citizens onto the street fighting to protect their judicial system, the rule of law, their fundamental rights and democracy. However, it is crucial to shed light on the fact that several issues make these protests not inclusive. In particular, problems are caused due to a lack of consideration of evaluating the social and economic justice issues in Israel among those, for instance, addressing the exclusion of the Mizrachi Jews (Jews of Middle East and North African origin) who are experiencing discrimination based on their country of origin. Along with the Arab Palestinian citizens of Israel, who face discrimination based on ethnic origin, therefore, struggle with systematic exclusion from the Israeli social, economic and political landscape. Last but not least, ignoring the occupation question of the occupied Palestinian territory in the protests indirectly undermines Israeli democracy. Palestinians already experienced occupation and denial of their rights, and they will now even be deprived of protection. The above arguments confirm that we are witnessing the rule of law and human rights backsliding in Israel within an explicit ethno-national democratic state context comprising ongoing military occupation of the occupied Palestinian territory.