The draft reform bill for The Basic Law: The Judiciary lacks balancing provisions and takes the most extreme versions of different proposals, government legal advisor Gur Bligh said in his opinion to the Knesset Constitution, Law and Justice Committee on Friday.
Bligh issued his warning in discussion papers ahead of the Sunday committee session for a bill that would limit the High Court of Justice's use of judicial review, cancel the use of the reasonableness clause, introduce an override clause to strike court rulings with a simple majority, and stack the judge selection committee with politicians.
The drafting papers described the debate on the reform of powers of Israeli courts as centering on the balance between those seeking to protect the democratic rights of the majority through the legislature versus those seeking to curb the majority and protect the civil rights of individuals through the High Court.
However, in Bligh’s opinion, he found that in both comparative analysis of the provisions with other states, and the impact of the laws together and on individual levels, the balance of power would swing uncontrollably into the hands of a ruling coalition.
“It seems that in the proposed version, extreme points from different proposals were selected and combined into one proposal while omitting from it all the balancing mechanisms that have been proposed in the past, so that in the overall picture, the bill seriously harms the court’s ability to act as a brake on the power of the legislative and executive authorities,” Bligh wrote in his opinion.
“Even in a comparative view of other democracies, it seems that it is difficult to find a combination of such significant restrictions on the ability of the judiciary to review the legislative and executive authorities.”
Gur Bligh, government legal advisor
According to Bligh, each individual law alone had the capability to change the judiciary into a branch subservient to the government and its ruling coalition, and together these provisions had the ability to a greater degree.
“The proposed change in the composition of the committee for the selection of judges is sufficient in itself, and the granting of an ‘automatic majority’ in the [selection] committee to the government and the majority that supports it, in order to fundamentally change the balance of power between the authorities due to the transformation of the courts into bodies with distinct political-representational aspects, in a way that raises the fear of harming the independence of the judges and their independence,” wrote Bligh.
“Similarly, it is sufficient to legislate the Override Clause alone – certainly when it comes to a model that allows legislation to override preemptively and in most cases a regular coalition of 61 Knesset members – to ensure the supremacy of the legislative authority, and in practice the executive authority as well, on the judiciary, since it will be relatively easy to prevent judicial review of legislation.”
Handicapping the High Court
ANOTHER ISSUE arising from the provisions being passed together was that some of them were incompatible or together created conditions that handicapped the court to a severe degree.
“It is proposed that judicial review will be limited only to the most extreme situations, in which the constitutional violation of human rights is so distinct that all the judges of the High Court (who, according to the proposal, will be appointed on the basis of a coalition majority) would come to the conclusion that the law is unconstitutional. In these circumstances, it is not clear what the justification is for enacting an Override Clause,” Bligh noted.
Bligh also explained that the wording of the draft bill deviated drastically from previous models developed by practice and proposed by academics. The proposed provisions are much more extreme when compared to similar laws in other countries.
“Even in a comparative view of other democracies, it seems that it is difficult to find a combination of such significant restrictions on the ability of the judiciary to review the legislative and executive authorities,” wrote Bligh.
For example, Bligh explained how other countries had various balancing mechanisms in regard to judge selection. The United States of America has executive appointments with approval by the Congress. In other systems, a qualified majority in parliament might make the appointment, or half might be selected by the parliament and half by the executive. He also noted that in contrast to the proposal to remove Israeli Bar Association representatives from the selection committee, global trends in the last 20 years were to include legal professionals in the process.
The proposed Override Clause had little in the way of limits on content, anchoring in Basic Laws or special procedures. While often compared to the Canadian Notwithstanding Clause, the Canadian version does have limits on content it can address, is a provision of the Charter of Rights and Freedoms and is limited in time.
While there were potential problems according to Bligh of the balance of power due to matters like politicization of the court due to selection based on political identity rather than professionalism, such provisions would also damage the functionality of the court. The ruling coalition would have more power, and would no longer need to seek agreement with other parties.
Bligh urged the law committee to address the lack of balance and inconsistencies.
“There is a serious fear that the proposed arrangement will allow serious damage to the protection provided to [human] rights and [democratic] principles,” concluded Bligh.