As an Israeli-born law professor living and working in the United Kingdom, I hear some people defending the controversial so-called “legal reforms” that Israel’s new government is trying to push through by drawing analogies with the British legal system. It’s a claim that must be debunked once and for all.
Before laying out why that comparison falls flat, however, one needs to understand what is at stake in this planned legal overhaul and why, if fully legislated, it is so dangerous.
The cumulative effect of this four-part plan is to dismantle the key fundamental features of the separation of powers and of checks and balances in Israel’s constitutional structure.
Some will argue that one can see some of the features of this proposed legal overhaul in other countries.
But as Kim Lane Scheppele, a sociology professor at Princeton University has argued, it produces something she has dubbed the “Frankenstate.” It refers to attempts to cobble together a legal leg from one country, a hand from another, and a nose from yet another resulting in nothing short of a constitutional monster - and not one that can usually still be justifiably called a democracy.
I cannot emphasize this strongly enough: Israel’s independent judiciary and its meritocratic legal civil service are key institutions. Should the government get its way, Israel within its internationally recognized borders may retain a semblance of formal democratic governance by holding periodic elections, but much of its substantive content will have vanished.
Israel is especially vulnerable to the detrimental effects of these proposals because it lacks all of the following key institutional mechanisms which other liberal democracies have, in part or in full.
Israel has no entrenched constitution and no explicit restrictions on the substance of its basic laws. Just two weeks ago, we saw an amendment to a basic law legislated simply to enable Shas leader Arye Dery, who was twice-convicted, once for bribery and more recently for tax offenses, to be appointed as a government minister.
Israel has no complete human rights charter. This means there is no explicit right to equality or to freedom of speech, both of which are judicial constructions.
Israel also has no federal governance structure that decentralizes power and forces compromises. Nor does it have a second chamber of government (like the Senate or House of Lords) that is intended to enhance expertise and temper majoritarianism. It also has no constituency system that limits political parties’ control over individual representatives.
Another key vulnerability is that Israelis cannot seek remedies for human rights violations by their government in a supranational human rights court, such as the European Court of Human Rights.
Compounding all these other limitations, Israel has been in a continuous (legal) state of emergency since its formation almost 75 years ago, tensions are fraught with its Arab minority, which has suffered systemic discrimination, and it has been an occupying power for over 55 years.
I often hear that the UK is a functioning liberal democracy which also lacks an entrenched constitution and strong judicial review. So why would it be so bad if Israel’s system simply becomes more like Britain’s?
Firstly, the UK is a legal outlier in a world where virtually all other countries (except Israel and New Zealand) have fully codified constitutions and, with that, a form of constitutional review.
But critically, and unlike Israel, the UK has institutional mechanisms that ensure legal and political accountability.
The UK is subject to a regional human rights court, the European Court on Human Rights, which can provide individuals a remedy for human rights violations where national courts have failed to do so. It has enacted a Human Rights Act and an Equality Act which protect minorities domestically; there is a second chamber, the House of Lords, which can revise legislation. Its delegation of significant powers in key areas of life to three of the UK’s nations, Scotland, Wales, and Northern Ireland (a process called devolution) has created partial Federalism. There is a strong constituency system which allows members of parliament who are not government ministers to dissent from the government line – to “rebel” – remaining loyal to their constituents’ wishes and to their conscience; and, ultimately, the rule of law is embedded in the political culture.
A key recent example is Brexit. On this, the most politically contentious question in recent memory, the UK Supreme Court stopped the government twice from exercising its powers unlawfully. First when it tried to bypass Parliament and start negotiating the UK’s departure without its go-ahead; and then when it tried to manipulate parliamentary processes by discontinuing a session of Parliament in a bid to avoid scrutiny of the plan by its lawmakers – so called ‘prorogation’ – to avoid Parliamentary scrutiny.
In Israel, the coalition has full control over Parliament procedure – including the power to decide when Parliament (the Knesset) can be dissolved.
Another difference pertains to the legal culture. In the UK, a rights-respecting culture is so embedded that two weeks ago the Joint Committee on Human Rights (whose members include lawmakers from both The House of Commons and the House of Lords who belong to the Conservative party) unanimously criticized the government’s proposed ‘British Bill of Rights’, calling on the government not to go ahead with it because its provisions are unnecessary and could damage the protection of rights.
In contrast, not a single Israeli member of the current coalition from a coalition party has criticized the “reform” plan.
Finally, political accountability often feels entirely absent from Israeli political culture. However, it's very much alive in the UK. Just last week a senior minister had to resign for committing tax offenses (for which he had paid a penalty), and only eight months ago Prime Minister Boris Johnson was forced out by his own party for breaking Covid rules and lying about it. In Israel, to quote a former president of the Supreme Court, Aharon Barak, the concept of something that “is not done is simply not done.”
This critical moment in Israel falls on the cusp of this still “young” nation about to turn 75. It is a country with an independent judiciary that – within its pre-1967, internationally recognized borders – has often protected vulnerable minorities and ensured legal accountability, often in the absence of political accountability. By removing key legal checks on government power, there may be no rule of law left. The government will, in effect, be the law.
It is not too late to avert this harm. Soon, however, if this legal overhaul is not blocked, it could very well be.
Reuven (Ruvi) Ziegler is an Associate Professor in International Refugee Law at the University of Reading School of Law, UK. He is a founding member of ‘Israelis without Borders’ Twitter: @ruviz
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