Adios, democracy? How Netanyahu’s proposed legislation would damage rule of law

Plans being drafted by the incoming government to curb the power of the courts, including a bid to grant Prime Minister Benjamin Netanyahu immunity from prosecution in the various corruption cases he faces and prevent from the Supreme Court from intervening, would be “a constitutional step backward” to “the pre-state era,” according to Dr. Yaniv Roznai, a senior lecturer at the Radzyner School of Law at IDC Herzliya and one of the country’s leading experts on international constitutional law.

Israel does not have a constitution and has adopted instead a series of Basic Laws that define the relationship and duties between the state and its citizens. The proposals seek to reform the Basic Laws that govern the relationship between the Knesset and the Supreme Court, giving the Knesset the final say.

Ever since Israel passed a controversial nation-state law last year that critics say undermines the country’s commitment to equality for all its citizens, Supreme Court justices have been preparing for the possibility of striking down Basic Law amendments such as the ones now being considered by the incoming government.

Referring to the nation-state law, outgoing Justice Minister Ayelet Shaked called the possibility of an overturn by the Supreme Court a “governmental earthquake” and the opening shot of a “war between the branches of government.”

The reform proposals have not yet been formally published, but have been widely reported on in the media. They include several elements that could benefit Netanyahu, who is facing indictment, pending a hearing, for fraud and breach of trust in three criminal cases, and bribery in one of them.

Illustrative. Supreme Court justices at a hearing on March 13, 2019. (Yonatan Sindel/ Flash90)

The first proposal is a change in the current immunity law that would require an indictment of a lawmaker to be approved by the Knesset’s House Committee.

The second is a change that would prevent the High Court of Justice from striking down a decision of the House Committee, thus maintaining Netanyahu’s immunity. This would be achieved by amending the judiciary Basic Law, which authorizes the High Court of Justice to exercise judicial oversight of administrative rulings of the state’s governing branches.

The third is an “override” clause that, among other powers, would enable the Knesset to stop the High Court of Justice from striking down the immunity law.

Dr. Yaniv Roznai, senior lecturer at the Radzyner School of Law at IDC Herzliya. (Courtesy)

“A broad override clause is extremely damaging to the principles of the separation of powers and the rule of law, and in my opinion it may be seen as a constitutional amendment that is unconstitutional,” Roznai told Zman Yisrael, the Hebrew sister site of The Times of Israel.

Several studies were published recently that crack the prevalent myth of rampant Supreme Court activism that the proposed legislation is ostensibly intended to reverse.

A study by Prof. Gad Barzilai, Dr. Maoz Rosenthal and Prof. Assaf Meydani found that of 9,500 rulings on petitions to the High Court of Justice, only 10 percent of the petitions against the government were accepted, while another three percent were partially accepted. Eighty-seven percent of the petitions were rejected in their entirety.

An examination by Dr. Guy Luria at the Israel Democracy Institute showed that the court has overturned laws only 18 times since 1992 – not very many, by international standards.

While 0.7 laws per year are overturned by the courts in Israel, 8.2 laws are overturned per year in Germany; 7.5 in India; 3.7 in South Africa; two federal laws per year in the United States; 1.6 in Ireland and in Canada; and 1.4 in Britain.

However, Roznai conceded that some of the concerns about judicial activism do have merit.

“Not many people know this, but a magistrate’s court or a district court can also perform judicial oversight and rule that a law is unconstitutional, even if its influence is specific. This has happened 10 times so far,” he said.

It would be preferable if “only the Supreme Court has that power,” he said.

“There are things regarding which the court is very activist, and maybe concerning them it has some guilt,” he said. “When the court intervenes in the ruling of an administrative power and sees with reasonable eyes that it is not a typical issue, that’s definitely something that is viewed as activist.”

But he queries calls from right-wing legislators including Yariv Levin (Likud) and Bezalel Smotrich (Union of Right-Wing Parties) — both of whom seek to be justice minister in the next government — to ban court petitions from plaintiffs, including public bodies, who have no standing in a case because they are not personally harmed by the alleged injustice.

Prime Minister Benjamin Netanyahu, center, Cabinet Secretary Tzachi Braverman, right, and Tourism Minister Yariv Levin, left, attend the weekly cabinet meeting at prime minister’s office in Jerusalem on January 27, 2019. (ABIR SULTAN / POOL / AFP)

“Without the Movement for Quality Government and other similar groups, who will submit petitions in cases such as the appointment of a person convicted of bribery, or a violation of the Basic Law: The Government?” asked Roznai.

I want as much protection as possible from the power of government, and it’s not clear to me why some citizens want to give the government as much power as possible

“No direct harm to civil rights exists there,” he said. “In any case, the court holds a hearing only when it is proven that harm has been done to the rule or law or the constitutional order — and I see no justification in undermining that mechanism. In any case, reducing probable cause and standing will be done naturally by more conservative judges in a diverse court. One doesn’t use a tank to kill a fly.”

Roznai said that his professional credentials aside, as a citizen he believes that when it comes to the issue of human rights, more is better.

“I want as much protection as possible from the power of government, and it’s not clear to me why some citizens want to give the government as much power as possible,” he said. “That’s the opposite of the constitutional view of the big revolutions in the United States and in France.”

“I, too, have criticisms of the court, in cases where it pushes the boundaries, but they do not justify what we are seeing and what may, perhaps, come,” he warned.

Roznai believes that a major threat to the power of the Knesset comes not from the courts but from the government, because successive coalition agreements have weakened the legislature, rendering the Knesset captive to coalition discipline.

“Levin and Smotrich are barking up the wrong tree,” Roznai said. “What should really disturb you is that at present, the government is the one who is taking away the people’s sovereignty, since the Knesset has almost no power anymore. Deal with that before you deal with the courts, since that really isn’t what is harming governance.”

Justice Minister Ayelet Shaked, right, and President Reuven Rivlin at a swearing in ceremony for newly appointed judges and court registrars held at the President’s residence in Jerusalem, on January 8, 2019. (Noam Revkin Fenton/Flash90)

But even if the Knesset is free to legislate as it wishes, the parliamentary majority is not always right, he stressed.

You can’t decide that part of the people isn’t the people

“I think that Levin really believes that the political majority represents the sovereign and that it should have unlimited power — that this is the essence of democracy. That is the view held by the political right wing in many countries,” said Roznai. “What is the sovereign? It’s the people, but the people are not 61 seats. The people is all of us: it’s multi-generational, crosses sector boundaries. You can’t decide that part of the people isn’t the people.”

“If you have a majority that decides that women don’t have the right to vote, is that it?” he asked. “Is that democratic because the majority ruled, and the majority is the sovereign? No. You can’t use a rationale of sovereignty in order to subvert sovereignty itself. You can’t use democratic arguments in order to promote the ruin of democracy.”

The court acts as a shield for the government and the soldiers of the Israeli army, he argued. Complementarity — the principle that jurisdictions do not overlap — gives power to courts all over the world, including the International Criminal Court in The Hague, to hear suits against Israelis only when the state court is unable or unwilling to act.

“The moment that we show that our court is independent, strong, and acts without fear or dependence, we protect our country from foreign judgment. I don’t think that Yariv Levin wants to put the commanders of the Israeli army or the ministers in danger.”

Yet Levin risks endangering them “unequivocally,” Roznai said, with the planned new legislation.

Palestinian Authority Foreign Minister Riad Malki speaks during a press conference at the International Criminal Court on May 22, 2018. (AP Photo/Mike Corder)

“Any weakening of the court means a weakening of the army and of the government in operational activities,” he said. “In Poland’s case, evidence was brought that the judges were not really independent, and as a result of that, the Council of Europe and the Venice Commission for the Rule of Law published reports stating that they did not trust the legal system in Poland. As a result of this pressure, some of the changes that the Polish government had planned for the courts were stopped.”

Based on his study of 742 national constitutions written since the American and French revolutions of the late 18th century, Roznai found the trend has been toward an increasing number of constitutions that limit the power of constituent assemblies to ratify constitutional amendments.

“If mechanisms for judicial oversight existed in fewer than 25 percent of countries during World War II, today they exist in more than 85% of countries,” Roznai said, adding that the reforms proposed by the incoming government reverse that trend.

In several countries, legislators have tried to amend their constitutions. In India, where the country’s political system was roiled by a state of emergency and election fraud scandals involving Indira Gandhi, the supreme court famously struck down attempts to amend the constitution and won, he noted. Attempts to change the constitution by parliamentary vote were also overturned in Belize, Taiwan, Honduras and Colombia.

“Even in countries where the constitution is silent and there are no restrictions, the courts said that there is a core of values that are the pillars of any constitutional arrangement, and are therefore implicitly protected. The reason given for this is that if you change or delete them, it’s like you’ve wiped out the entire constitution and replaced it with a new one,” he said.

This article was adapted from a version which originally appeared on Zman Yisrael, the The Times of Israel’s Hebrew site.