A hard-hitting speech by a Canadian Supreme Court judge has helped persuade the Israeli government to reconsider dramatic changes to its democratic structure, Israel’s ambassador to Canada says.
Justice Rosalie Abella made a public foray this spring – extremely rare for a sitting judge – into the politics of a foreign country. With Israel proposing to diminish the power of its Supreme Court, she gave a speech at the Hebrew University in Jerusalem saying that the Jewish state’s judges, and consequently its democracy, are in grave danger.
“To me, when an independent judiciary is under siege, democracy is under siege, and when democracy is under siege, a country’s soul is being held hostage,” she said in her speech in April.
The proposed changes, which would have given legislators the right to overrule the Supreme Court when it struck down a law, have now been taken off the table, at least until the next election, which could be as far off as November, 2019.
Several factors may have influenced that decision, including the misgivings of some members of Israel’s governing coalition. But Justice Abella’s speech was influential, too, according to Nimrod Barkan, Israel’s ambassador to Canada.
“Her speech was part of a general view of friends of Israel who are involved with the Israeli judicial system that made it clear to [Prime Minister Benjamin] Netanyahu that he has to reconsider,” Mr. Barkan told The Globe and Mail.
“I think it’s helped delay the decision,” he said of her speech. “It’s a new, different perspective and the political leaders are very careful not to do something that will be unhelpful to the Israeli judicial system as it is viewed internationally.”
The Times of Israel, an online newspaper, published lengthy excerpts of her speech. She did not refer explicitly to government proposals for an override clause in these excerpts. But her speech has been received at the highest levels of the Israeli government as a plea not to go ahead with an override. She did not comment on Canada’s override clause.
The Israeli top court has been harshly criticized, on social media and by right-wing and religious political groups, because it has blocked deportations of African asylum seekers, declared unconstitutional the exemptions of the ultra-Orthodox from military service and suspended a law allowing Israel to confiscate privately owned Palestinian land on the West Bank.
A proposal allowing legislators to override Supreme Court rulings had passed a preliminary vote in the Knesset this spring, with the government’s backing.
Justice Abella, 71, is the senior judge on the Supreme Court of Canada, having joined in 2004. She is also the daughter of Holocaust survivors, and was born in a displaced-persons camp in Germany. Her husband, Irving Abella, is a former head of the Canadian Jewish Congress, and co-authored the book None Is Too Many, about Canada’s refusal to grant asylum to Jewish refugees from Europe during the time of Hitler.
Israel’s constitutional debates bear some resemblance to Canada’s.
In Canada, the Charter of Rights and Freedoms gives judges the power to review and strike down legislation. It also has an override or “notwithstanding” clause allowing government to set aside a court ruling; this override needs to be renewed every five years.
Israel has no written constitution, but it does have Basic Laws, including one that protects human dignity and liberty, drafted in the 1990s, and interpreted by judges as a supreme law akin to Canada’s Charter.
In lengthy excerpts of her speech published in The Times of Israel, she did not refer explicitly to the proposals for an override clause, but her speech has been received at the highest levels of the Israeli government as a plea not to go ahead with an override. She did not comment on Canada’s nothwithstanding clause.
The current debate echoes a near-constant discussion in Canada since the 1980s. Indeed, Justice Minister Ayelet Shaked has been saying her country needs a Canadian-style override clause to ensure that legislators, not judges, rule.
But some Israeli legal scholars say the comparison is faulty. In Canada, the override has been rarely used. In Israel, “the fear is the Knesset will use it on a daily basis,” Amnon Reichman, an Israeli who is a visiting professor at the University of California at Berkeley, said in an interview.
Barak Medina, who holds a chair in human-rights law at Hebrew University, calls Justice Abella’s speech an important contribution to the protection of the rule of law in Israel. “This is especially so given the Justice Minister’s repeated reference to the Canadian Charter’s ‘override clause’ as a justification to employing a seemingly similar provision into the Israeli Bill of Rights,” he said in an e-mail.
Whether the Abella speech made a difference, and how much of one, is unclear. “I can’t measure the effect,” Dorit Beinisch, a retired Israeli Supreme Court judge, said in an e-mail to The Globe and Mail, but it “was obviously influential.”
“I assume it helped,” Mr. Reichman said, “but the central cause [of delay to the passage of a bill] was the lack of sufficient political support within the coalition to the above proposal.”
Mr. Barkan, too, cited the unhappiness of some within the governing coalition with the proposed override as a reason for reconsidering. He also pointed to the case of Canadian emergency ward doctor Tarek Loubani as illustrating why Israel’s judiciary needs to retain international respect.
Dr. Loubani was shot in both legs last month during Palestinian protests along Israel’s border with Gaza, in which Israeli troops killed 62 people and injured hundreds. Prime Minister Justin Trudeau has called for an independent investigation of the violence. Israel rejected the call, but announced that its military would conduct a fact-finding inquiry into the wounding of Dr. Loubani.
“We expect the Canadian government to have trust in the Israeli judicial system, including the military justice system, based on the experience of many inquiries in the past,” Mr. Barkan said. “The very fact we’re willing to get advice underscores this point.”
Mr. Barkan said his country did not resent Justice Abella’s intervention. “We know this is a work of love.”