A Constitutional Revolution in Israel?
Israel Democracy Institute.
Justice Minister Yariv Levin announced a government plan for a sweeping overhaul of Israel’s judicial system this week.?The principal goal of the plan is to significantly curtail the Supreme Court’s ability to exercise judicial review over Knesset legislation and decisions of the executive branch. The plan also calls to increase the representation of the executive branch on the Judicial Selection Committee and turn the legal advisors of all government ministries into political appointees. Taken together, these proposals amount to a sweeping power grab by the executive branch in a democracy that lacks a written constitution or a bill of rights and in which authority is already extremely centralized.
IDI experts have studied these proposals and analyzed their potential implications.
Explainer:
1. The Override Clause Explainer
Turning court rulings into a “recommendation” that the Knesset could override, is likely to exacerbate tensions that already exists between the Supreme Court and the Knesset.
What is the Override Clause?
In the absence of a formal constitution, Israel has a set of Basic Laws that regulate the division of powers among the branches of government and anchor some human and civil rights. An “override clause” is a mechanism that would allow the Knesset to enact legislation that overrides a Basic Law.
When an ordinary law passed by the Knesset contradicts a provision of a Basic Law (especially when it seriously infringes of human rights without a justification, based on the grounds that it serves a worthy cause in a way that is proportional), as the Supreme Court reads and interprets the Basic Laws, the court can declare the law “unconstitutional.”
In these cases, an override clause, if introduced, would allow the Knesset to re-enact the law that was struck down, despite the Supreme Court’s explicit ruling that it is incompatible with a Basic Law (that is, that the law is unconstitutional).
In some versions of the proposal, the override clause would even permit a law to be shielded in this way when first passed, and thus be totally immune to judicial review. In an early proposal submitted by several Knesset members, the support of only a bare minimum of 61 Knesset members would suffice to override provisions of the Basic Laws; in other words, precisely the number needed to control the legislature (there are even proposals that would allow the Knesset it to pass a regular law, with any majority, contrary to a Supreme Court ruling). In essence, this would allow the majority to do as it wishes and ignore the Basic Laws the Knesset itself passed, and not heed High Court rulings, whether ab initio or post factum.
There is no country in the world except Canada (from which we can learn a lesson as to the damage done by an override clause), where a parliamentary majority can override the constitution.
1. Why is an override clause especially dangerous for Israel?
An override clause would give a Knesset majority absolute power to enact laws, notwithstanding the stipulations of the Basic Laws. By doing so, it would severely curtail the Supreme Court’s authority of constitutional review of laws passed by the Knesset, which is controlled by the Government (the executive branch) that enjoys a political majority. Every country has checks and balances that set limits on the power of the political majority. In Israel, however, the Supreme Court is the sole balancing mechanism:
Israel does not have a formal entrenched constitution, a bicameral legislature, or a president elected by a separate popular vote who wields executive power. Nor does any decentralization exist, in the form of a federal system or constituency elections, or any other mechanisms that could provide checks and balances, such as acceptance of the authority of international courts.
In Israel, the Supreme Court is the only restraint on the power of the political majority.
Given Israel’s unique situation—no other checks and balances—an override clause would turn the country into one of the weakest democracies in the world, constitutionally speaking: human rights and minorities would have no effective protection against the majority.
2. Given that the Knesset majority was elected and reflects the will of the popular majority, what is wrong with allowing it absolute power?
The principle of majority rule is indeed a foundation of democracy. However, it t is not usually the sole foundation, and needs to be balanced against other democratic principles such as the rule of law, separation of powers, and defense of human rights. Because democracy is the rule of all the people, including minorities and individuals that are not part of the majority, the principle of majority rule must be balanced against the other principles.
A constitution is one of the critical means to protect the other democratic values. One goal of such a document is precisely this: placing restraints on a parliamentary majority. One of the constitution’s functions is to define rights that cannot be infringed without proper justification by ordinary legislation. This does not mean that such rights are absolute and can never be infringed, but only that there are criteria for when it is permitted. These criteria are based mainly on the purpose served by the infringement of a right, whether this is a worthy purpose, and whether the same end might be achieved by some other and lesser infringement of the right (this is called “proportionality”). In most countries, an ordinary law that flouts the constitution will be deemed unconstitutional and struck down.
The Supreme Court’s authority to determine whether a law contravenes a principle protected by e Basic Laws does not mean that the majority is powerless. If the majority believes that the Court erred, it can amend the constitution. Other than Canada, however, there is no country where the constitution can be overridden without being amended.
Here we must note that in Israel (unlike most countries, where a super majority and a lengthy process are required to amend the constitution), it is all too simple to rewrite the Basic Laws: most of them can be modified by a majority vote in the Knesset, while others require a majority of the full house (61 MKs). The amendment can even be enacted in three readings of the bill on a single day. This means that Israel’s “constitution” is already weak; giving Knesset members the power to override Basic Laws by means of ordinary legislation would weaken it even further to the point of irrelevance. Minorities and politically powerless sectors would suffer a harsh blow, with no one left to defend them.
3. If a Knesset majority of 61 can already amend basic laws, why would the override clause be a fundamental change in the system?
Even though the Basic Laws are in constant flux, at least those that apply to human rights (the Basic Law: Human Dignity and Liberty, the Basic Law: Freedom of Occupation, and several sections of the Basic Law: The Knesset) are not modified frequently.
In the absence of an override clause, if the Knesset wishes to abolish or modify some human right, it will have to do so explicitly, by amending the Basic Laws, and then be subject to public criticism for infringing on human rights. By contrast, under an override clause, the Knesset majority could pretend that it was merely “overriding a Court ruling,” making it easier to sell the maneuver to the public. For example, an amendment of the Basic Law: Human Dignity and Liberty stating that “equality” does not apply to compulsory military service would be a serious political and public step, whereas simply adding an override clause to the Compulsory Service Law, exempting the ultra orthodox from serving, would proclaim that there is no infringement of equality here, but only the Court’s interpretation of it.
Proof that the Knesset is wary about directly amending the Basic Law: Human Dignity and Liberty is that since 1992 the Knesset has bowed to Supreme Court rulings and not introduced specific amendments to the law. But the fiery rhetoric in the Knesset after every Court ruling—the calls to enact an override clause—demonstrate that if such an option were available, it would be invoked frequently. Coalition agreements might even include a provision stating that the coalition would be obligated in advance to apply the override clause to court rulings in specific matters (such as religion and state).
4. An override clause would exacerbate the conflict between the branches of government
Turning court rulings into something like a “recommendation” that the Knesset could override, is likely to exacerbate the head-on confrontation that already exists between the Supreme Court and the Knesset. Some assert that an override clause is part of a legitimate “constitutional dialogue” between the branches of government. But in Israel, if the last word is left to the legislature, which also controls the constitution, there would be no real dialogue, but only a unilateral power grab that would undermine the existing constitutional “dialogue,” in which the Court can strike down laws; and the Knesset, the legal advisors, and the entire system are aware of that possibility. All this would change if the Knesset always had the last word. If that came to pass, we might see a situation in which the Supreme Court, which has always been very cautious about striking down laws, would have fewer qualms about doing so.
Op-ed
2. Changing the System for Judicial Appointments—Only with a Broad Consensus
Despite controversy, changes to the Judicial Selection Committee, must be made with broad consensus - and not by slimmest of majorities.
Information leaked from the coalition negotiations, as well as the political platforms of elected officials from the Right, indicate that a substantial change to the system for judicial appointments is now on the agenda. Currently, judges are chosen by the Judicial Selection Committee, which comprises five members from the legal profession (three judges and two representatives of the Israel Bar Association) and four members who are elected representatives (two ministers and two members of Knesset). It appears that the incoming coalition will seek to change this arrangement by giving politicians—and particularly, representatives of the governing coalition—the deciding vote on selecting judges. As can be seen in the platform of the Religious Zionism party, for example, the intention is to implement this change not only for the appointment of Supreme Court justices, but rather- for all judges in all courts, and would also include dismissal of judges as well as their appointment (as the Committee also has the authority to dismiss judges).
If this intention comes to fruition this will be the first substantive change to the procedure for appointing judges since the formation of the Judicial Selection Committee in 1953. While specific minor adjustments to the current system may be called for, I believe that its underlying principles are sound, and that it would be a mistake to stray from them.
What can be learned from the way in which the current system was adopted, some 70 years ago, about the limits of the legitimacy of the proposed change? In 1953, the government and the Knesset relinquished their power to select judges. Until then, judges were appointed by the government on the basis of recommendations from the Minister of Justice, while Supreme Court justices were appointed by the government and ratified by the Knesset. But as MK Yaakov Shimshon Shapira (Mapai) made clear during the Knesset’s deliberations: “The government has acted wisely by taking not the path of lusting for power, but rather-the path of building the state… The government, of its own good will, has relinquished the powers it currently holds.”
At the time, there was controversy on the details of the arrangement, but the general principle behind it, enjoyed broad consensus among politicians of all stripes: that is, the need to ensure judges' independence by means of a Judicial Selection Committee. The Committee was seen as the appropriate tool for neutralizing the influence of party-political interests that until then had been involved in the process of judicial appointments. Consequently, the basic model for the Judicial Selection Committee, which includes both elected officials and legal professionals, won the support of almost all parties and legal professionals.
Even those who disagreed with the composition of the Committee as it was eventually decided upon, such as opposition MK Menachem Begin (Herut), did so because they-in fact- wanted to increase the number of professional representatives on the Committee, rather than political representatives, in order to “take an extra step toward the independence of the Committee.” Or as MK Eliezer Shustak (Herut) explained: “We propose … an appointments committee of a kind that will provide a sense of security and clear knowledge to all the country’s citizens that the ruling party does not hold the ruling power within the appointments committee.”
The arrangement adopted was considered at the time to be of a constitutional nature. Thus, efforts were made to secure broad support for it in the Knesset. Indeed, the arrangement we have today was the outcome of agreements thrashed out in discussions among the leadership of the coalition, which numbered 87 MKs, and in the Knesset Constitution Committee, and was understood by the opposition and government parties to be a "compromise". This compromise resulted from the opposition and some members of the coalition relinquishing their ambition to further increase the representation of legal professionals in the committee, relative to the representation of political officials; and the government forgoing components of the appointments process that were designed to give the Minister of Justice greater control over the process.
The incoming coalition would do well to learn from the elected representatives of that time. First, its proposed changes would do serious harm to the independence of the judicial branch, if it takes the path of “lusting for power” by granting control of the Judicial Selection Committee to the ruling party, coalition, or government. Second, while the Knesset has the authority to change the procedures for appointing judges with even a small majority, in order to gain full legitimacy, any changes to the constitutional arrangements in this area should be made only on the basis of broad consensus among the public at large and in the Knesset, including opposition factions.
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Why Kyiv Needs an Africa Strategy
By Dr Greg?Mills
Ukraine is understandably focused on maintaining Western support, but it needs a narrative that appeals to others – those who can otherwise easily dismiss the conflict as a ‘Western war’. While it has a pretty compelling pitch, so far Kyiv has not managed to cut through at the political level in Africa, writes Greg Mills, who has just returned from his sixth visit to Ukraine of 2022 – this time accompanying the Archbishop of Cape Town, His Grace Thabo Makgoba.
Despite its isolation elsewhere, Russia has maintained a level of global diplomatic support in the developing world, including in Africa – historically the largest regional beneficiary of Western aid.
Indeed, Kyiv acknowledges that it has fallen behind Russia in winning diplomatic support for its cause in Africa. This much can be clear in the limited support of African countries for Ukraine in various UN General Assembly votes since 24 February 2022.
In the first, on 2 March 2022 – on a resolution?condemning the Russian aggression?– 28 African states voted in favour, one (Eritrea) voted against, 17 abstained, and eight were not in the room. While a majority of African states voted for the resolution, the number who sat on the fence or avoided the vote was substantial.
The result of the second resolution on 24 March – on the?humanitarian consequences?of the war – was much the same, with 26 voting with Ukraine, one (again, Eritrea) against, and 20 abstaining. Six states were not in the room.
This changed slightly with the resolution on 7 April to?suspend Russia’s membership rights in the Human Rights Council, with the results 10 for, nine against (Algeria, Burundi, the Central African Republic, Congo, Ethiopia, Gabon, Mali, Zimbabwe and again, Eritrea), 24 abstainers and 11 stay-awayers.
The fourth resolution, supporting the?territorial integrity of Ukraine, saw 29 voting in favour, zero against, 19 abstaining and five staying away – presumably because Africans are equally concerned about the violation of their territorial space, even though they are paradoxically less willing to condemn those that undermine international law in this regard.
Finally, the latest resolution – that of?14 November on Russian reparations for Ukraine?–produced results of 16 for, five against (the Central African Republic, Ethiopia, Mali, Zimbabwe and again, demonstrating its unwavering commitment, Eritrea), 27 abstentions, and five who were not in the room.
The trend would seem to be towards trying not to take sides, no matter the principles at stake. With a vote to establish a special UN war crimes tribunal on the cards, both sides will now be lobbying Africa hard. But Ukraine will have to work that little bit harder.
It is not that Africans lack sympathy for the plight of Ukrainians. A recent poll by?the Brenthurst Foundation found that nearly 75% of South Africans?believe Russia’s invasion of Ukraine to be ‘an act of aggression that must be condemned’, despite Pretoria’s fence-sitting on the war. More than 80% said South Africa should offer either military, diplomatic or moral support if a sovereign democratic country is invaded by its neighbour.
‘Why then’, asks Oleksandr Merezhko, the chairman of the Foreign Affairs Committee in the Ukrainian Parliament, ‘does South Africa support a process of colonial subjugation?’ After all, ‘The world’, he says, ‘is now divided between those who support democracy, and those that prefer authoritarianism’.
‘The winner of this war between autocracy and democracy’, observes Hryhoriy Nemyria, the deputy of the political party of former Prime Minister Yulia Tymoshenko, ‘will write the rules of the new world order’. On this reading, one would expect all countries that practice democracy and value open societies to come out against the invasion.
It is not hard to make the case that Russia’s actions threaten Africans as much as they are designed to erase the institutional and cultural fabric of Ukraine
To muddy the moral waters, what Russia and its supporters have done is to cast the invasion as a political power play between it and the West, rather than one between an authoritarian coloniser and a sovereign democracy. This has given elites the fig leaf they need to sit on the fence or quietly support Russia for a range of historical and clientelist reasons.
This narrative ought to be challenged. It is not hard to make the case that Russia’s actions threaten Africans as much as they are designed to erase the institutional and cultural fabric of Ukraine.
As Vitali Klitschko, the former World Heavyweight Boxing Champion and now Mayor of Kyiv, put it: ‘We are not just defending rights in Ukraine. We are defending values, freedoms, democracy and human rights everywhere’. Or as Ukraine’s Foreign Minister Dmytro Kuleba?asked of African fence-sitters in a zoom call in November with African journalists, ‘What are you trying to be neutral about – neutral about the right of one country to attack another country; neutral about the mass destruction of cities; neutral about the deaths of civilians and atrocities committed?’
Authoritarianism is not just about violence per se, however, or even whether votes count – and are counted – in domestic elections. It is about a system and the purpose of government, where elites profit disproportionately and have little to no accountability or chance of being evicted via the polls. It is, moreover, a system that encourages violence.
It is little wonder, then, that the interests of Africans – according to polling across Africa – align with democracy and openness rather than the brand of elite-centred governance promoted by Vladimir Putin. More than two-thirds of Africans regularly surveyed by Afrobarometer?prefer democracy to other forms of government.
The problem in Ukraine’s relations with Africa is partly historical, in that Russia has inherited the goodwill generated by the Soviet Union’s support for Africa’s liberation movements, despite Ukraine being a disproportionately large contributor to those struggles. It is also because of African antipathy towards the West, partly as a result of colonial history, and in some cases linked to the non-aligned status of certain African countries. Some, including South Africa, have ideological aspirations that more closely align with Russia – think of the BRICS grouping – than the West, despite (and perhaps because of) the reality of Pretoria’s current trade and investment partners. In the case of South Africa, there is also the?stench of Russian funding for the ruling party, the African National Congress, and?rumours of weapons transactions with Moscow, fuelled by mysterious Russian shipping calls and an unwillingness to?fully disclose the nature of arms deals in parliamentary inquiries.
All of this is symptomatic of Ukraine’s failure to challenge the Russian narrative and develop a plan to bring Africa on board.
This speaks to its focus and resources, but also to its diplomacy. Ukraine has just ten diplomatic missions in Africa, compared to Russia’s 46. This is perhaps to be expected of a country which is 3.5 times smaller in population terms than Russia, and 10 times smaller in overall economic terms.
This helps to explain why, when President Volodymyr Zelenskyy addressed the African Union in June, just?four heads of state out of the 55 invited turned up. The rest sent representatives. Russian Foreign Minister Sergei Lavrov made an in-person tour of Africa the following month, receiving?a warm welcome from the Egyptian, Congolese, Ugandan and Ethiopian?heads of state.
This is partly down to Ukrainian neglect. Zelenskyy has met only one African leader (the president of tiny Guinea-Bissau) in person and spoken to six on calls since the Russian invasion in February. Zelenskyy maintains a comparatively constant stream of Western engagements, with every European leader seemingly looking for a photo op with the Time Person of the Year, the Churchill of the moment.
It is also partly down to substance. Much of Kyiv’s time and energy in its African outreach has been spent recently on trying to gather moral support to condemn Russia, while Moscow has a more direct approach to Africa through military assistance programmes – notably through the Wagner group – as well as buying up surplus ex-Soviet military hardware for its own use, including ammunition.
If authoritarianism is to triumph in Ukraine, its passage will surely be easier in Africa. That is something for African electorates to consider if they expect others to take notice of their own plight
Kyiv’s lack of success may additionally relate to its inevitably hyper-transactional relationship with other regions, where Africa does not enjoy the same leverage. Kyiv is understandably focused on surviving the war and does not seem to have much of an international plan beyond closer European integration – one that it is unlikely to entice greater African backing, despite the widespread fear across Africa of Russian power.
Is there a prospect,?as some posit, for Kyiv to turn this around?
Kuleba?said that Ukraine’s victory should teach those?who are considering a similar path to that pursued by Moscow to not ‘even dare to invade … even think about it; look what happened to Russia after it tried. This is a very pragmatic, realpolitik consideration’. For that to have meaning, however, Ukraine first has to win this struggle, a victory which is in the interests of African democrats.
With 54 UN General Assembly votes, Africa is a rich diplomatic ground for both Russia and Ukraine – one where the Ukrainians can fairly easily build pathways. For this, they need a convincing narrative, and to engage with Africans. To do so, Kyiv will need to change its message and its game, and go beyond?current plays on access to commodities?via the ‘Grain from Ukraine’ initiative.
To make this attractive, and to entice Africans to its cause, Kyiv will have to drop the victim card that serves it well in the West.
Rather, its narrative will need to extend to what victory will mean in terms of reform and African opportunities.
It could instead focus on what is at stake if Africans ignore these responsibilities, and the choices they have to make. The substance is already there. As Kuleba points out dramatically, ‘There are moments in history [when you can’t] be friends with good and evil simultaneously’.
To make this connection, Kyiv’s message should link the past with the future.
The Cold War was immensely bad for African governance, as countries’ worth was measured not by how they governed their own people, but how supportive they were to the major powers. If authoritarianism is to triumph in Ukraine, its passage will surely be easier in Africa. That is something for African electorates to consider if they expect others to take notice of their own plight.
This is precisely where Ukraine could aim its African diplomatic pitch.
The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.
About
Greg Mills
Biography
Dr Greg Mills heads the Johannesburg-based?Brenthurst Foundation, established in 2005 by the Oppenheimer family to strengthen African economic performance.
With Brenthurst, Greg has directed numerous reform projects with African heads of government, including Rwanda (2007-8), Mozambique (2005-11), Swaziland (2010-11), Malawi (2012-14, and again 2020/1), Kenya (2012 and 2020), Lesotho (2008; 2019-20), Liberia (2006/7), Zambia (2010; 2016), Zimbabwe (2009-13), Ghana (2017), Ethiopia (2019-20), Nigeria (2017-18), and almost continuously at various levels of government in South Africa from the Foundation’s outset. He sat on the?Danish Africa Commission?and on the?African Development Bank’s high-level panel on fragile states, and served four deployments to Afghanistan with the British Army as the adviser to the commander. He has also worked extensively in Colombia, and with a variety of African governments in both improving the conditions for peacebuilding and investment, including through the?Zambezi Protocol?on the natural resource sector.
Prior to joining the Brenthurst Foundation, he taught at the Universities of the Western Cape and Cape Town, and was the national director of the South African Institute of International Affairs (SAIIA) from 1996-2005, and SAIIA Director of Studies from 1994-96.
A Senior Associate Fellow and member of the Advisory Board of the Royal United Services Institute, he is the author of the best-selling books?Why Africa Is Poor?and?Africa’s Third Liberation, and together with President Olusegun Obasanjo,?Making Africa Work: A Handbook for Economic Success. In 2018, he completed a second stint as a visiting fellow at Cambridge University, producing a book on the state of African democracy, which was published as?Democracy Works?in 2019.?The Asian Aspiration: Why and How Africa Should Emulate Asia?(again with President Obasanjo and former Ethiopian Prime Minister Hailemariam Desalegn) followed in 2020, which identifies the relevant lessons from Asia’s development and growth story. His writings won him the Recht Malan Prize for Non-Fiction Work in South Africa.
His latest books,?Expensive Poverty, which details the failings of aid, and suggests several ways to improve development outcomes, was published by Pan Macmillan in October 2021, while?The Ledger: Accounting for Failure in Afghanistan?was published by Hurst/Oxford University Press at the start of 2022.
Greg was appointed to the Advisory Panel of the?Commonwealth War Graves Commission?in 2022.
He holds a BA Honours from the University of Cape Town, and an MA and a PhD from the University of Lancaster.
His recreational interests include cycling and motorsport. A grandson of the?pre-war Grand Prix driver Billy Mills, he received his national colours for motorsport in 2016, and is the recipient of provincial colours for rowing and motorsport. In 2019, he headed the?first South African team to participate at Le Mans, in the Road to Le Mans, driving a Bentley GT3, and was appointed as the President of the Western Province Motor Club the same year. He is a board member of?Motorsport SA, and serves also as a member of the FIA’s Historic Commission.
Greg has written eight books on Southern African motorsport for various charities, the last being?Saloons, Bars and Boykies: Southern African Motorsport Heroes.
He is married to Janet Wilson, the artist, teacher, and South African representative rower. They have three children.
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