Irwin Cotler is an emeritus professor of law at McGill University and a former minister of justice and attorney-general of Canada. He has appeared before both the Supreme Court of Canada and Israeli High Court of Justice on constitutional issues.
Two of the Israeli government’s proposed judicial reforms passed in first reading at the Israeli parliament on Monday, while close to 100,000 people protested outside. It was characterized by the government as a “bright day in the defence of democracy” and by the opposition as a “black day” heralding the downfall of democracy – a situation reflective of the toxic political and public discourse surrounding the reforms.
From the outset, the discussion surrounding the reforms has had a distinct Canadian connection, first foreshadowed with early references by the Israeli government to the Canadian notwithstanding clause as an analogy and inspiration for the proposed Israeli override clause. This Canadian connection has also been embodied in a letter written by prominent Canadian jurists and legal scholars opposing the reforms, as well as by Israeli protesters recently dressing up as handmaids from Canadian author Margaret Atwood’s famed dystopian novel The Handmaid’s Tale.
Also, what is not so well-known is that Canada’s constitutional revolution of 1982 was reflected in Israel’s constitutional revolution of 1992, and the adoption then of Israel’s Basic Law on Human Dignity and Liberty modelled on Section 1 of the Canadian Charter of Rights and Freedoms.
While certain proposals can be adopted to enhance judicial reform, including alleviating the overburdened character of the Israeli High Court of Justice and the protracted process of criminal and civil litigation, the five major reforms, if adopted, will have the combined effect of seriously undermining the independence of the judiciary, its ability to review government legislation, the separation of powers and related checks and balances, the rule of law, and the protection of human rights.
This is not to say, as some critics have argued, that this risks the “end of democracy” or the slide into “dictatorship.” At the end of the day – and the mass protests have demonstrated this most compellingly – Israel still has a strong civil society, an elected parliament (the Knesset), a free press, and quasi-constitutional Basic Laws, including the Basic Law on Human Dignity and Liberty.
There are five proposed major judicial reforms. The first – and where Canada has been invoked as precedent and principle – is the creation of an override clause, which would allow the Knesset to overrule the High Court of Justice’s striking down of government legislation, and would require a simple majority of 61 Members of the Knesset (MKs) to do so. Supporters of the judicial reforms have consistently pointed to Canada’s notwithstanding clause as an example for the override clause. Indeed, Prime Minister Benjamin Netanyahu himself did so in a recent CNN interview with Jake Tapper.
To begin with, I oppose – and have always opposed – the Canadian notwithstanding clause. Nevertheless, there are also clear and significant differences between the notwithstanding clause and the proposed override. First of all, the notwithstanding clause exists within the context of the Canadian Charter of Rights and Freedoms, whereas Israel lacks a written constitution. Second, Canada has a federal political system and a bicameral legislature, and the federal government has undertaken never to invoke the notwithstanding clause, an undertaking I made as minister of justice and attorney-general. As a result, the clause has therefore only been used by the provinces, correspondingly limiting its impact. Third, Canada’s clause is limited by a sunset provision – five years – meaning the contested legislation could go before the court again if necessary. Finally, the Canadian notwithstanding clause does not apply to all the categories of rights enshrined in the Charter, whereas the Israeli version would.
If the Israeli Override Clause is adopted, at the very least, it should require more than a simple majority of 61 MKs as is currently proposed. A supermajority of at least 70 MKs, or ideally 80, two-thirds of the Knesset, should be required in order for the override to be invoked.
The second major aspect of the proposed reforms is the evisceration of judicial review. In order for the High Court of Justice to conduct judicial review, the reforms would mandate that all 15 Supreme Court judges must unanimously decide to invalidate the legislation. Indeed, on Wednesday, the Knesset gave first reading to legislation that would preemptively immunize laws – including Basic Laws – from judicial review.
The third significant component of the proposed reforms – and one which was passed in the first reading on Monday – is the modification of the current judicial appointment process. Currently, Israel has a strong consensus decision-making process for judicial appointment, involving judges, lawyers, parliament and government. Under the proposed reforms, this process would be replaced by one in which the executive branch of government has a controlling majority in appointing judges, an effective politicization of the judicial process. The architects and proponents of the judicial reform point to the fact that there is a similar appointment process in most democratic countries, including Canada. Although this is true, that does not make it a superior model than the current Israeli one. In fact, the opposite is true, and as justice minister and attorney-general of Canada, I referenced the Israeli process as an inclusive and engaged model example of judicial appointment that Canada would benefit from emulating.
The fourth major proposed reform is the rejection of the reasonableness standard of review, which requires government action to be reasonable in nature, and which protects against arbitrary and discriminatory executive action. In Canada, the standard of reasonableness is the primary standard for judicial review – in fact, approximately 90 per cent of Canadian administrative law decisions are made using the standard of reasonableness. To remove this standard of review would be to further insulate any arbitrary and capricious government action from judicial oversight.
The fifth and final aspect of the proposed judicial reforms is to make the legal advisers to government ministries political appointees, rather than independent civil servants reporting to the attorney-general, as they are now. This change would undermine the independence of the legal advisory process, further politicizing the justice system.
Although the supporters of the judicial reforms are wrong in how they have invoked Canada – primarily in support of the proposed override clause – the Canadian experience can in fact serve as an important comparative example for Israel at this juncture.
In 1982, Canada underwent a constitutional revolution, resulting in the adoption of the Charter of Rights and Freedoms, transforming Canada from a parliamentary democracy into a constitutional democracy. Importantly, the Charter that was adopted was highly different from what was originally proposed. Following then-prime minister Pierre Elliott Trudeau’s initial Charter proposal, an 18-month parliamentary and public engagement process developed, where hundreds of civil society groups made representations to a joint House-Senate Parliamentary Committee on the Constitution. Through this engaged, democratic and iterative process – which I participated in, making submissions on behalf of three different groups – the Charter in its ultimate form was created. In other words, what started as “Trudeau’s Charter” became “The People’s Charter.” This is precisely what is needed in Israel – the proposed judicial reforms must move from “Justice Minister Levin’s Reforms” to “The People’s Reforms.” This can only be achieved through a significantly lengthened and democratized consultative process.
While certain reforms are needed, these reforms – as President Isaac Herzog has recommended – should emerge from a serious, sustained, deliberative, and consensual process involving government, parliament, bench and bar, civil society organizations and academia. Ultimately, I believe that any justice reform in Israel should proceed with the hope of eventually adopting a written constitution – grounded in the existing compendium of Basic Laws, and incorporating its foundational Declaration of Independence – and I am hopeful that the current proposed reforms can be revised toward that end.