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‎Supreme Court Chief Justice Esther Hayut (C) and other judges on the court, ahead of a hearing on March 14, 2019. (Hadas Parush/ Flash90)
Hadas Parush / Flash90, showing the Supreme Court in session
Interview'After a certain amount of time, democracy disappears'

Israel is already in a constitutional crisis, leading law scholar warns

Suzie Navot is not against parliamentary immunity and wants the Knesset to be able to override the Supreme Court. But she’s also worried about a creeping erosion of democracy

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Main image by Hadas Parush / Flash90, showing the Supreme Court in session

Unlike some of her colleagues, Suzie Navot, one of Israel’s leading constitutional scholars, is in favor of a so-called “override” clause, which would allow the Knesset to re-legislate a law that had been struck down by the Supreme Court, as long as a large enough majority determined that the law is crucial to the wellbeing of the state.

Navot also does not oppose protecting politicians against criminal prosecution, provided that the immunity be confined to lawmakers’ parliamentary work.

And yet, she is deeply worried about the current trend pervading Israel’s political climate, including daily calls for widespread legal reforms that all appear designed to weaken the rule of law. This includes, of course, Prime Minister Benjamin Netanyahu’s alleged efforts to avoid prosecution in the three corruption cases against him, as well as the demands by right-wing politicians to curtail the powers of the Supreme Court.

“Unfortunately, we’re already in a constitutional crisis, because of all the attacks, from various political actors, against the legal system,” Navot warned. “As if Israel had no other problems — only the Supreme Court has to be dealt with. And the message is that some elected politicians have to ‘take care’ of the Supreme Court just as they have to ‘take care’ of Hamas, as heard during the recent election campaign.”

Some initiatives mooted by politicians may very well be justified, she allowed. An override clause, for instance, is important, as long as it is legislated “in the context of a genuine, open conversation about the balance between the powers in Israel, about a constitution, about checks and balances. Not in the context of one power overcoming the other,” she said. “An unlimited legislature is very problematic.”

Democracies do not die overnight. But, she lamented, “they are eroded, day by day, slowly but surely. And the problem is that the public doesn’t feel it.”

Most Israelis enjoy their lives, unperturbed by the fact that some of their elected representatives are pushing legislative proposals to clip the legal system’s wings, to weaken the gatekeepers, and to restrict the freedom of the press.

“Each of these laws may not cause a great impact,” she said. “But after a certain amount of time, democracy disappears. No more checks and balances, just one powerful leader or government without controls or limitations. This can hardly be called democracy.”

In a wide-ranging interview with The Times of Israel last week, Navot, who wrote her dissertation about parliamentary immunity, also discussed Netanyahu’s chances to elude criminal prosecution on the basis of an existing law that protects lawmakers from trial.

Leading Israeli constitutional law professor Suzie Navot (courtesy)

Citing the current legislation and his Likud party’s impressive performance in the April 9 elections, Netanyahu could argue that charging him would hurt the will of the people, Navot allowed. At the same time, she argued that the law grants immunity to legislators only for minor offenses.

“So even if you want to protect the voters’ will, and if the criminal charges against the prime minister remain the same after his hearing, it will be difficult to convince the court that these are minor offenses,” Navot said, referring to the prime minister’s upcoming pre-trial hearing, which the AG’s office recently scheduled for early October.

“And therefore it will be important to see what’s in the indictment. If the prime minister, during the hearing, succeeds in persuading the attorney general to drop some of the charges, it may be possible for Netanyahu to use the immunity law,” she said.

A native of Uruguay who immigrated to Israel when she was 13, Navot currently is full professor of constitutional law at the Stricks Law School in Rishon Lezion. Her 1997 doctoral dissertation about immunity for MPs was awarded the Prize of the Israeli Association for Parliamentarism. In the past, she has consulted for different branches of government, public institutions, and individuals from across the political spectrum.

Following is a transcript of our conversation, which took place in Hebrew, edited for length and clarity.

The Times of Israel: As Netanyahu’s fifth government reportedly seeks to reform laws pertaining to immunity and the balance between the judiciary and the legislature, some Israelis are worried about the end of democracy, while others celebrate what they see as long-overdue steps that will strengthen the will of the people. Which side are you on?

Suzie Navot: I think this question should be rephrased. You’re presenting it as if it’s something binary, which it is not. Israel’s legal system needs fixing. For example, the powers of the legal system need to be defined in the framework of a constitution, a constitution that cannot be changed every other day.

In Israel, even if we have Basic Laws, we don’t have one document called “The Constitution.” Our Basic Laws have constitutional status, but they can easily be changed and amended and the judiciary is not protected in the framework of a rigorous constitution. And therefore it is possible to threaten it every other day, to curtail its powers, to change the process of selecting judges, and so on.

After every controversial court ruling, we hear things like, “We will deal with the legal system.” This doesn’t happen in other democratic countries. You don’t change the rules of the game, and the nature of government institutions, whenever and however you please.

Rather, you act according to agreed societal norms that are anchored in the constitution, which is not changed. In Israel, this needs fixing. There is no doubt that it needs to be established within a Basic Law that the Supreme Court has the authority to strike down laws. But that is not the kind of change politicians are talking about today.

We do not have three balanced powers. We have an executive that is very strong. We have a Knesset that is entirely dominated by the coalition government. The Knesset has no effective oversight mechanism over the government.

After every controversial court ruling, we hear things like “we will deal with the legal system.” This doesn’t happen in other democratic countries

We don’t have two houses of parliament and we have no supra-national institutions, and therefore the only institution in Israel that oversees the use of the power by the executive is the Supreme Court. We don’t have any other checks and balances.

So you’re in favor of strengthening the power of the Supreme Court, as opposed to many in the coalition who want to weaken it?

Indeed, we need to strengthen the court so that it can have effective power for checks and balances on the executive. Otherwise, you’ll have an all-powerful executive. It rules over the legislative process, and it has no limits.

Take a look what kind of limits you have elsewhere in the world: bicameral parliaments, a rigorous constitution, effective oversight over the courts, international courts. There are many oversight mechanisms. We don’t have any of them — only the Supreme Court. Therefore, the system needs to be reformed, to establish once and for all the right balance between the powers, but not in the way that is being proposed now by some politicians. What they’re trying to do is a cover for the real story — they want to prevent putting the prime minister on trial.

Let’s look at the various proposals. First, the override clause. The Knesset, of course, has the right to overrule a court decision. That is totally legitimate in my view. It’s even desirable — that our constitution would include an override clause, so that in extreme cases the Knesset can say, “We have a real need to override a court ruling.” But it cannot do that with a simple majority of the ruling coalition. It has to be somewhat of a consensus.

So you would look at a majority of, say, 80 MKs needed to override a court decision?

Yes, certainly. If 80 MKs are saying there is no other way, that under the current conditions, the State of Israel cannot uphold this ruling, the Knesset is allowed to overrule it. That’s wholly legitimate, and I think it’s the right thing for the State of Israel.

But the message needs to be: It’s the people who cannot live with this court ruling, not the coalition only. It’s the nation, not the currently elected government.

Now that’s about the regular override clause. But the elected politicians are talking about an extended override clause, which is a term the public will have a hard time understanding. What’s hiding behind this phrase is not only the power to overrule court decisions, but to prevent the court from interfering with administrative decisions made by the government and the Knesset.

View of the Knesset prior to the Regulation Bill vote on February 6, 2017. (Yonatan Sindel/ Flash90/File)

If, for instance, the Knesset makes a decision that contradicts the purposes and wording of the immunity law, which protects the prime minister from criminal prosecution, the purpose of this extended override clause would be to prevent the Supreme Court from getting involved. Even if the decision to grant the prime minister immunity is illegal.

So let’s talk about the immunity law as it stands. What is its true rationale?

The purpose of the immunity law is to protect the Knesset and its members — as opposed to members of the executive branch.

Netanyahu is also a member of Knesset.

Yes, but the law is intended to protect his position as an MK. They want to protect his position as prime minister.

The immunity law is meant to protect the position of MKs, mostly to enable them, like all over the Western world, to express themselves freely, so that one cannot prosecute them over things they’ve said in their parliamentary work.

It’s mainly to protect their freedom of speech, for instance, [regarding] offenses such as incitement, racism, support for terrorism, libel. The State of Israel doesn’t put MKs on trial for such offenses. That’s the core of immunity — to prevent MKs from being put on trial for things they say.

This is called functional immunity, which protects parliamentarians from prosecution for things they did in fulfilling their parliamentary work. This kind of immunity exists all over the Western world.

Prime Minister Benjamin Netanyahu (right) with Tourism Minister Yariv Levin in the Knesset on February 13, 2018 (Yonatan Sindel/Flash90)

Let’s look at the text of the law, which has been in place since 1951: “A Knesset member shall bear no criminal or civil responsibility, and shall be immune from any legal proceeding, in respect to a vote, an oral or written expression of opinion, or any other act, in and outside the Knesset, if such vote, expression of opinion or act, pertains to or is directed toward the carrying-out of his [or her] mandate as a Member of the Knesset.”

Over the years, the court has interpreted this law to refer to things MKs do as part of their parliamentary work, in particular verbal expressions. This is the court’s legal analysis, exactly like anywhere else in the world. Take, for example, the Speech or Debate Clause of the US Constitution.

Besides this kind of immunity, in some countries — a decreasing number of countries, I should add — there is an additional sort of immunity, which has to do with offenses committed by a parliamentarian that are unrelated to his parliamentary work. For instance, theft, robbery, bribery. This is called procedural immunity, or inviolability.

The courts already established that crimes such as bribery and fraud and breach of trust are not considered part of one’s mandate as MK. What happens to British MPs who take bribes? What happens to lawmakers in the US, and elsewhere, who commit crimes unrelated to their parliamentary works? Most countries don’t grant immunity for such cases.

And what’s the situation here?

In Israel, we have both: immunity for things done within the framework of their function, and also procedural immunity. The latter grants an MK immunity from prosecution for offenses that have nothing to do with his or her function. This procedural immunity, as in other countries, may be lifted by the Knesset.

That’s actually what has happened since the state was founded until today — the Knesset lifted the immunity of all Members of Knesset tried for offenses or crimes that were not part of their function.

Until 2005, the procedure was like this: The attorney general came to the Knesset and said, “Ladies and gentleman, I want to indict someone for bribery.” The Knesset House Committee would then vote to lift the procedural immunity. The Knesset plenary would do the same, and that MK could be put on trial like a regular person.

That procedure changed in 2005, after the Knesset debated the case of Likud MK Michael Gorlovsky, who was caught voting twice in 2003.

In that case, the House Committee refused to lift the immunity, arguing that MK Gorlovsky had already been punished by the Knesset disciplinary committee.

Then-MK Michael Gorlovsky (Flash 90/ File)

A petition was filed with the High Court of Justice against the House Committee. The court decided unanimously to cancel the committee’s decision.

The court stated that the House Committee can refuse to lift an MK’s immunity only if the attorney general acts in bad faith or in a discriminatory manner.

The court wrote that as a general rule, it will not interfere in Knesset decisions. [But] the court will interfere whenever the Knesset deals with immunity, because the Knesset is assuming a “judiciary” role.

When the Knesset takes upon itself a quasi-judiciary role, or whenever a body acts in a quasi-judicial manner, it’s the Supreme Court’s role to exercise oversight and control the proceeding and the outcome. After the Gorlovsky case, an amendment was passed to the immunity law, which essentially abrogated the need for the attorney general to appear before the House Committee and ask for the removal of immunity.

In line with this amendment, the rule is now that a Knesset member against whom an indictment has been filed will not enjoy procedural immunity. If he requests, on special grounds, to enjoy procedural immunity, he must do so expressly, and only then will a special hearing be held on his request.

Let’s talk about the four “grounds” on which MKs can ask for immunity today. According to the 2005 amendment you mentioned, an MK can request immunity if a) the alleged crime was committed in the fulfillment of his parliamentary duties; b) the indictment is served in “bad faith”; c) the alleged wrongdoing was committed in the Knesset building and was already dealt with within the Knesset; and d) prosecution would cause “real damage … to the representation of the electorate.”

These grounds were never interpreted by the Supreme Court. The Supreme Court will eventually decide if these grounds apply to Netanyahu.

Could Netanyahu argue that Attorney General Avichai Mandelblit is acting in bad faith?

It’s not enough for him to merely make that claim. He has to prove it. He needs to produce evidence — he needs clear and persuasive proof. It has to be a legal argument.

Attorney General Avichai Mandelblit at conference at Bar-Ilan University in Ramat Gan on March 28, 2019. (Flash90)

The fourth rationale appears to work perfectly in Netanyahu’s favor. He was just reelected by the people, so a decision to refuse him immunity could be interpreted as causing “real damage… to the representation of the electorate.”

On the face of it, Netanyahu could certainly try to argue in favor of the use of this paragraph. After an indictment is filed — if filed — the prime minister can ask the Knesset for procedural immunity. That means that he would not be brought to trial during his term.

Let’s take a closer look at what the law says about that fourth reasoning. It states that an MK can request immunity if prosecution “would cause real damage to the actual functioning of the Knesset or any of its committees, or to the representation of the electorate, and failure to conduct such a proceeding — taking into account the severity of the offense, its nature or circumstances — would not cause significant harm to the public interest.” This appears wide open to all kinds of interpretations.

This clause talks, first of all, about damage caused to the Knesset, which, by the way, shows that the law intends to protect the functioning of the legislature, and not of the government.

Then it talks about the Knesset committees, and only then about the “representation of the electorate.” Hence, this phrase may refer to the people’s representatives in the Knesset. The people voted for the Likud party, which is led by Netanyahu. We vote for slates, not for people. Will the representation of the electorate in the Knesset be hurt if Netanyahu is put on trial?

You could argue that the people voted for Likud mostly because of its longtime leader, so the “representation of the electorate” argument appears valid.

I accept that reasoning. Still, I think this article [in the law] was meant to protect parliamentary minorities.

But even if it also refers to the representation of Likud voters, the clause says that immunity can only be given after considering “the crime’s severity,” and if refraining from serving an indictment would not cause significant harm to the public interest.

Prime Minister Benjamin Netanyahu addresses Likud supporters as the results of the Israeli general elections are announced, indicating that he has won reelection, at the party headquarters in Tel Aviv, in the early hours of April 10, 2019. The Hebrew placard declares “There will be nothing,” a reference to Netanyahu’s oft-repeated assertion that “There will be nothing, because there is nothing” on which he can be prosecuted in the criminal investigations against him. (Noam Revkin Fenton/FLASH90

I think that the idea here is to protect MKs from minor offenses. If a member of Knesset is not prosecuted for a severe crime, the public interest — namely, the rule of law — is affected. That’s why the last segment of the clause explicitly states that the offense’s severity needs to be taken into account.

So even if you want to protect the voters’ will, and if the criminal charges against the prime minister remain the same after his hearing, it will be difficult to convince the court that these are minor offenses. And therefore it will be important to see what’s in the indictment. If the prime minister, during the hearing, succeeds in persuading the attorney general to drop some of the charges, it may be possible for Netanyahu to use the immunity law.

Let’s talk about the initiatives that are currently on the table. If the coalition passed legislation to restore the old version of the law, as it existed before 2005, would it still be comparable to the situation in other parts of the world, where MPs enjoy automatic immunity?

I am not sure it would be comparable. The trend in the Western world is to reduce procedural immunity, and statistical research shows that, in those countries where it still exists, the parliament removes it in the vast majority of the cases, lest the parliament becomes a city of refuge for criminals.

Democracies don’t collapse on one day. They don’t simply “die” in an instant. They are eroded, day by day, slowly but surely. And the problem is that the public doesn’t feel it

What about an override clause? How, in your view, should the judges react if the Knesset passes a law allowing the ruling coalition to curtail the court’s ability to strike down laws and administrative decisions? Should they just quit?

I would prefer not to answer this question.

I think it’s a question pertaining to the very foundations of our democracy — how do you manage the balance between the legislative branch and the judiciary?

Democracies don’t collapse in one day. They don’t simply “die” in an instant. They are eroded, day by day, slowly but surely. And the problem is that the public doesn’t feel it.

Leading Israeli constitutional law professor Suzie Navot (courtesy)

The cafes are full. The restaurants are packed; we go to concerts, everything’s fantastic. Here, an override clause, there, a limit to the court’s competencies, here, a law limiting the court’s power or the possibility for NGOs to file petitions, and so on. The gatekeepers are weakened, the media is limited.

On their own, each of these laws may not cause a massive impact. But after a certain amount of time, democracy disappears. No more checks and balances, just one powerful leader or government without controls or limitations. This can hardly be called democracy. The best examples of these processes are Poland and Hungary.

And therefore I worry about these legislative proposals made by Israeli politicians. I may find justifications for some of them. I am in favor of an override clause. It needs to be written, but it has to happen in the context of a genuine, open conversation about the balance of the powers in Israel, about a constitution, about checks and balances. Not in the context of one power overcoming the other. An unlimited legislature is very problematic.

So let me ask you again: How should judges react when the Knesset wants to curtail their competencies?

Lawmakers can propose changes to a Basic Law that are in themselves unconstitutional. This is called the doctrine of the “unconstitutional constitutional amendment.” In Israel, the Supreme Court has the means to strike down such unconstitutional constitutional amendments. But it is an unconventional weapon. It’s a society’s doomsday device. Not of the courts — of the society, of the people, of the basic values.

Israel’s Supreme Court has never canceled an amendment to a Basic Law. So if the Knesset were to amend the Basic Law that defines the court’s authority…

That’s true. And I certainly hope that it will never have to.

New Right co-chair Justice Minister Ayelet Shaked in a satirical campaign ad, released on March 18, 2019, that mocks left-wing fears of her judicial reform proposals. (Twitter screen capture)

Under what circumstances can the judges deploy that doomsday weapon?

In my opinion, they have the authority to declare a Basic Law inconsistent with the basic values of the state, with the basic idea that Israel is a Jewish and democratic state, as written in the Declaration of Independence.

Let’s imagine the Netanyahu coalition passing a law to curb the Supreme Court’s powers, and the court trying to strike down that very law. Wouldn’t that lead to a constitutional crisis?

Unfortunately, we’re already in a constitutional crisis, because of all the attacks, from various political actors, against the legal system. As if Israel had no other problems — only the Supreme Court has to be dealt with. And the message is that some elected politicians have to “take care” of the Supreme Court court just as they have to “take care of” or confront Hamas, as heard during the recent election campaign.

Where will this crisis take us?

What will become of this constitutional crisis will ultimately depend on what is in the legislative proposals that are currently being discussed.

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