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An Overview of Israel's ‘Judicial Overhaul’: Small Parts of a Big Populist Picture
Published online by Cambridge University Press: 04 January 2024
Abstract
In the comparative constitutional field relating to backsliding democracies, it is difficult to find an example of a single constitutional event that undermines the basic principles of democracy. Democracies die in a slow and gradual process. Each of the laws passed is not in itself fatal for democracy but when the measures are examined together, cumulatively, the whole is greater than the sum of its parts. It is the big picture, the whole series of legal moves, that brings about a fundamental change in the state's regime until it is no longer a liberal democracy. In these situations of gradual erosion there is no single law that can reveal the magnitude of the change inherent in it. To understand the risk, it is therefore necessary to refer to its overall institutional context. The proposed reform in Israel may result in serious harm to the principle of separation of powers. Moreover, given the importance of imposing limits on governmental power as a tool for protecting human rights and the ‘rules of the game’ in democratic regimes, the reform would seriously harm the protection afforded to these rights and principles, and constitute a clear and present danger to Israel's liberal democracy.
Keywords
- Type
- Symposium Articles
- Information
- Israel Law Review , Volume 56 , Special Issue 3: The Constitutional Crisis in Israel , November 2023 , pp. 482 - 501
- Copyright
- Copyright © Israel Democracy Institute, R.A, 2024. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem
References
1 Huq, Aziz and Ginsburg, Tom, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 78, 137–41Google Scholar.
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3 For further reading on the constitutional history of Israel see Sapir, Gideon, Barak-Erez, Daphne and Barak, Aharon (eds), Israeli Constitutional Law in the Making (Hart 2013)Google Scholar; Navot, Suzie, The Constitution of Israel: A Contextual Analysis (Hart 2014)CrossRefGoogle Scholar.
4 Bill to amend Basic Law: The Judiciary (Amendment No 4) (Judicial Review over the Validity of a Law) (2023). For the original version of the bill, see Bill to amend Basic Law: The Judiciary (Amendment – Strengthening the Separation of Powers) (draft for discussion published by the Chair of the Constitution, Law and Justice Committee, 17 January 2023) (Draft for Discussion).
5 Amichai Cohen and Yuval Shany, ‘Reversing the “Constitutional Revolution”: The Israeli Government's Plan to Undermine the Supreme Court's Judicial Review of Legislation’ Lawfare, 15 February 2023, https://www.lawfaremedia.org/article/reversing-the-constitutional-revolution-the-israeli-government-s-plan-to-undermine-the-supreme-court-s-judicial-review-of-legislation.
6 Basic Law: The Judiciary (Amendment No 3), https://fs.knesset.gov.il/25/law/25_lsr_2997865.pdf. For the original version of the bill, see Draft for Discussion (n 4).
7 By various groups and NGOs: for example, the Israel Bar Association, Movement for Quality Government in Israel, Yesh Atid party, among others.
8 The Knesset does not have unlimited authority to pass and amend Basic Laws. Indeed, in a democracy there is no such thing as unlimited power. According to past Supreme Court rulings, there is one restriction on the Knesset when it seeks to pass or amend a Basic Law: it cannot revoke or severely infringe the ‘core characteristics’ of Israel as a Jewish and democratic state. If it does so, the Supreme Court may intervene and even strike down such legislation. In HCJ 2144/20 Movement for Quality Government in Israel v The Speaker, Ruling and Decision (25 March 2020), the Speaker of the Knesset, Yuli Edelstein, refused to convene the Knesset plenum to elect a new speaker, despite a request from 61 Knesset members. Supreme Court President Hayut ruled that ‘where there is an unprecedented infringement of the rule of law, then unprecedented remedies are called for’: ibid para 5. This statement would seem to apply also to the current situation.
9 HCJ 5658/23 Movement for Quality Government in Israel v The Knesset (3 September 2023), Response on behalf of the Attorney General (in Hebrew).
10 Bill to amend Basic Law: The Government (Amendment – the Government's Powers in its Legal Affairs) (circulated to members of the Committee on 11 January 2023) (in Hebrew).
11 Bill to amend Basic Law: The Judiciary (Amendment No 3) (Strengthening the Separation of Powers) (13 February 2023) (in Hebrew).
12 Huq and Ginsburg (n 1). For further discussion see also Frantz, Erica, Authoritarianism: What Everyone Needs to Know (Oxford University Press 2018)CrossRefGoogle Scholar; Frantz, Erica, Democracies and Authoritarian Regimes (Oxford University Press 2020)Google Scholar; Sadurski, Wojciech, A Pandemic of Populists (Cambridge University Press 2022)CrossRefGoogle Scholar; Issacharoff, Samuel, Democracy Unmoored: Populism and the Corruption of Popular Sovereignty (Oxford University Press 2023)CrossRefGoogle Scholar.
13 Cohen and Shany (n 5).
14 Frantz (2020) (n 12) 274–80.
15 Huq and Ginsburg (n 1).
16 Sadurski (n 12).
17 Worster, William Thomas, ‘The Transformation of Quantity into Quality: Critical Mass in the Formation of Customary International Law’ (2013) 31 Boston University International Law Journal 1, 4 and 13Google Scholar. See also Roznai, Yaniv, ‘The Straw that Broke the Constitution's Back? Qualitative Quantity in Judicial Review of Constitutional Amendments’ in Cantillo, Alejandro Linares, Valdivieso-León, Camilo and García-Jaramillo, Santiago (eds), Constitutionalism: Old Dilemmas, New Insights (Oxford University Press 2021) 147Google Scholar.
18 Erica Frantz, ‘Opinion dated 11 August 2023’ in Suzie Navot and others, Opinion on the Annulment of Judicial Review of Governmental and Ministerial Decisions for Unreasonableness, Israel Democracy Institute, Annex B, 112, https://www.idi.org.il/knesset-committees/51189 (in Hebrew).
19 Issacharoff (n 12).
20 Mark Landler, ‘Appeals Court Rejects Request to Immediately Restore Travel Ban’, The New York Times, 4 February 2017, https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html; Alan Rappeport, ‘That Judge Attacked by Donald Trump? He's Faced a Lot Worse’, The New York Times, 3 June 2016, https://www.nytimes.com/2016/06/04/us/politics/donald-trump-university-judge-gonzalo-curiel.html.
21 Sadurski (n 12).
22 James Slack, ‘Enemies of the People’, The Daily Mail, 4 November 2016.
23 Zoltán Fleck, ‘Judges under Attack in Hungary’, Verfassungsblog, 14 May 2018, https://verfassungsblog.de/judges-under-attack-in-hungary.
24 ‘“A Little Sensitivity Wouldn't Hurt”: Coalition MKs Reject Ben-Gvir Tweet’, The Jerusalem Post, 23 July 2023, https://www.jpost.com/israel-news/politics-and-diplomacy/article-752065.
25 HCJ 4267/93 Amitai, Citizens for Good Administration and Integrity v Prime Minister (8 September 1993); HCJ 4646/08 Lavie v Prime Minister (12 October 2008).
26 See, eg, the monitoring of the anti-democratic legislation by Yael Shomer and Liron Lavi of the Political Scientists for Israeli Democracy, https://docs.google.com/spreadsheets/d/1e6iRsPhCgzFVFoYRU-7Svz2WqolZuJH1rwfwKsaMp7U/edit#gid=0 (in Hebrew), and the forthcoming monitor of the Israel Democracy Institute.
27 These tables are translated and slightly revised from Navot and others (n 18).