Israel’s legal reforms look awfully Canadian – and that’s not good

Open this photo in gallery:

Even by the standards of Israel’s fractious democracy, things are getting pretty cataclysmic. On Monday, tens of thousands of protesters besieged the Israeli parliament in defence of a democracy they fear is in jeopardy; inside, legislators accused each other of “fascism” and “anarchy.” Earlier, Israeli President Isaac Herzog had warned the country was on the brink of “social and constitutional collapse.” Business leaders worry the country’s economy will be collateral damage.

What has provoked all this division and rancour is a package of legal reforms introduced by the right-wing government of Prime Minister Benjamin Netanyahu, with the aim of curbing the power and independence of the country’s Supreme Court – or, if you prefer, of removing one of the few limits on the government’s own power.

There are several pieces to the package, but at its heart is a proposal that will sound familiar to Canadians: one that would allow the Israeli parliament to override the Court’s decisions, upholding laws the Court had found were in violation of guarantees of rights under Israel’s proto-constitution, the Basic Laws. Or in other words, the notwithstanding clause. Mr. Netanyahu even refers to it as “the Canadian model.”

Oh, there are differences between the two. For example, our own notwithstanding clause applies only to certain parts of the Constitution, a product of that special Canadian genius for compromise wherein governments are allowed to trample on some people’s rights but not on others’. And it contains within it a requirement that it be reinvoked every five years, forcing politicians to pander to majority fears of minorities over and over again. Neither of these can be said of the Netanyahu plan.

But fundamentally the two are based on the same premise: that the “will of the people,” as embodied by the decisions of their legislature, must be paramount, and that it cannot be subject to any limits or restraints – neither by the Constitution, nor by the courts as its interpreters.

The Constitution, that is, should only be as binding upon Parliament as Parliament agrees it should be; it, and not some independent arbiter, should decide whether it has lived up to the promises made in the Constitution it endorsed. And since Parliament has become little more than a plaything of the executive, what this really means is that those in government should be left to decide for themselves what limits they will accept on their power.

Some, noting the Israeli bill’s resemblance to the notwithstanding clause, will be tempted to conclude the reaction it has aroused is overblown. Others might be more inclined to wonder why Israelis are so passionate in their defence of basic liberties, compared with our own relative complacency in the face of outrages such as Quebec’s Bill 21.

But the oddest reaction of all is surely that of the more than 60 former Supreme Court judges, professors of law and other Canadian legal luminaries, among them several notable defenders of the notwithstanding clause, who have lately put their names to a public statement of concern at the Netanyahu bill.

The argument would appear to be that constitutional overrides are all very well for Canada, with its rich history of democratic pluralism, but not for Israel, where the first thing they would probably do is pass a law preventing people of certain faiths from working in the public service or something.

“Recent proposals to transform Israel’s legal system,” they warn, “will weaken democratic governance, undermine the rule of law, jeopardize the independence of the judiciary, impair the protection of human rights, and diminish the international respect currently accorded to Israeli legal institutions.”

Yes, they probably will. But how is what is proposed for Israel fundamentally different than what already exists in Canada? That’s easy, they write: it’s on account of “the exceptional concentration of political power in the Israeli system … The prime minister and his coalition partners in the cabinet wield concentrated political power through their control of the legislature.” So you see, the two situations are completely different.

Why, do you know that in Israel the government is allowed to name two of the nine members of the Judicial Selection Committee that has sole statutory authority to recommend appointments to the Supreme Court – and that under the Netanyahu plan, that would rise to five? As opposed to Canada, where the prime minister appoints all the judges himself (albeit with the help of a non-binding advisory board).

Context is everything, I suppose. Still, when Mr. Netanyahu talks soothingly about implementing the “Canadian model,” that may be exactly what people fear.