Israel's Wild Ride with Justice Reform Could Spell Disaster for PM Netanyahu and the Nation

By Vivian Bercovici with Professor Adam Dodek*

I. Prime Minister Benjamin Netanyahu Promotes His New Book

I was ambling in North Tel Aviv, midday-ish, mid-November, when a notice popped up on my phone announcing the publication of Bari Weiss’s lengthy interview with PM-elect Benjamin Netanyahu.

These were the early days in protracted government coalition negotiations in Israel, which overlapped with the publication of Netanyahu’s newest book, My Life. In her brief introduction to the podcast (I read the transcript), Weiss lamented the fact that she had only been given an hour in which to cover so much ground, but she used it well.

Particularly galling about it all was that our newly elected Prime Minister was being so generous in sharing his time and insights with an American journalist – A-list, to be sure – but had not graced the Israeli media with so much as a grimace.

I spoke then with numerous Israeli journalists and political types who all dismissed the snub as “classic Bibi”. “

It’s just Bibi selling his book,” was the typical reaction. “And he knows that if he speaks with us (the Israeli media) we’ll challenge him much more aggressively.”

Weiss was among the earliest journalists to score an interview. The trickle soon became a torrent of Bibi chatting with foreign, English-speaking journalists and independent media types.

Among them was the global (and Canadian) intellectual phenomenon, psychologist Jordan Peterson, with close to 7-million You Tube followers, 3.8-million on Twitter and then some. Peterson had 90 minutes with Bibi  – unplugged. He was quite excited, telling his viewers that this was his first sit-down with a world leader.

And Bibi is not just any world leader. He’s the Mick Jagger of presidents and prime ministers; long-serving and brilliant -  intellectually and as a communicator. He is also very charismatic. I have had the privilege of being in small, private settings with the man, seeing him in larger, formal events and working a convention hall of Likud loyalists. He is indefatigable, extremely hard-working and exudes power, control and cool; always managing a calm, collected demeanor, no matter how crazy things are around him.

By the time the very friendly Peterson interview was broadcast in mid-January, the Israeli media began to see this public relations blitz as being less about Bibi promoting his book and more about selling his controversial judicial “reform” and other legislative plans. His continued ghosting of Israeli media reinforced the view that he was focused on cultivating American public opinion even before his own citizens. Perhaps he thought that with the U.S. onside Israelis would fall in line.

II.  Canada, eh?

The roadshow continued.

Tapper challenges Netanyahu on his controversial proposal that has sparked massive protests

PM Netanyahu’s recent and lengthy tête-à-tête with CNN anchor, Jake Tapper, was a show-stopper. Again, Bibi did his fireside-chat thing, assuring Tapper – as if they were pals - that all this talk in Israel about his justice reform subverting or undermining democracy was just hysteria from a disgruntled left-wing glob that could not accept electoral defeat with grace.

In fact, he asserted, his judicial “reforms” were intended to enhance Israeli governance and finally include the exact same features found in many strong democracies.

Leaning forward in his chair, pausing dramatically, affecting jocularity – and all quite convincingly – Bibi dropped a thunderclap. He relished the moment, saying with mock surprise:

“Here’s a country that has exactly this provision.” He was referring to the proposed "override clause" which would permit the barest majority - 61 of 120 Knesset members - to do away with any decision of the Supreme Court - including judicial review - with which it disagreed.

Dramatic pause.

Drawing by Igor Tepikin

“It’s called Canada. Is Canada not a democracy?” he challenged Tapper. “Is Britain not a democracy? Is New Zealand not a democracy? Because they all either have such a provision or have no ability of the court to strike down laws.”

Fact check: Not true.

III. Canada’s “Notwithstanding Clause”

Although Canada obtained its independence from Britain in 1867 and became a parliamentary democracy, it lacked its own “homegrown” constitution until 1982. In that year, Prime Minister Pierre Trudeau (the father of current Canadian Prime Minister Justin Trudeau) patriated the existing constitution from Britain along with a new Charter of Rights and Freedoms, which was a constitutionally-entrenched bill of rights. (Note 1)

At first, only two of the ten provinces supported PM Pierre Trudeau’s proposal. The so-called “Gang of Eight” opposed Trudeau’s reforms because they were concerned that they would enhance federal power at the expense of the provinces. Trudeau could have forced the new Constitution on the opposition parties and opposing premiers, but he chose a more conciliatory path.

The matter was referred to the Supreme Court of Canada for guidance. And the Court determined that “by convention” (not by law) the federal government required “substantial” support from the provinces. 

Accordingly, Trudeau negotiated to address the provinces’ concerns. The result was the inclusion of the notwithstanding, or “override” clause; the central demand by the provinces in return for their political approval.  

This accomplishment was Pierre Trudeau’s crowning legacy and fulfilled his vision to ensure that Canadian federalism in his image was concretized and enshrined in the nation’s fundamental law.

IV.  When and How Has the Canadian Notwithstanding/Override Clause Been Used?

Québec used the override in response to a 1988 Supreme Court of Canada decision striking down part of its law restricting the use of all languages in the province other than French on signs.

This act by Québec sparked a fierce backlash in the rest of Canada, essentially making resort to the “override” a political taboo for the next 30 years outside the province.

In the last five years, provincial governments in Ontario and Québec have used the override with greater frequency, causing uncertainty and concern, heightened by quite extreme division in Canadian political culture and society, generally.  Prime Minister Justin Trudeau has recently mused about the need for the Supreme Court of Canada to clarify – meaning, really, to restrict - the use of the override. To date, no such reference to the Court has been made by his government but there is a case dealing with the use of the override in Québec currently making its way to the Supreme Court.  At some point in the reasonably foreseeable future, the Supreme Court of Canada is likely to address the issue. 

V. Democracy 101: Does a Parliamentary Majority Sanction Unlimited Exercise of Power?

The parliamentary and legal landscape in Israel is very different from Canada’s. As well, the scope and nature of the override clauses in each jurisdiction are significantly different.

Canada has many more checks and balances in its system of government than does Israel.  It is a country where power is divided between the federal government and the provinces.  At the federal level, Canada has an admittedly weak upper house – the Senate – but that body has acted in the past to slow down or, in extreme cases, veto, the lower house – the House of Commons.  Furthermore, Canada’s override only applies to certain Charter rights, exempting others including democratic rights (the right to vote) and mobility rights. 

Perhaps most importantly, Canada has much stronger notions and precedents of constitutional convention and practice – unwritten rules of political morality that political actors are willing to respect. Finally, written into the very text of the Canadian Constitution are two “nuclear” constitutional powers that would allow the federal government to set aside or veto any provincial law, including one using the notwithstanding clause. These powers have not been used since 1943, but they do exist. In an exceptional circumstance the federal government could resort to invoking such powers to quash the use of the override by a provincial government.

In contrast to Pierre Trudeau’s somewhat accommodating approach to constitutional reform, the Israeli plan hits like a hammer. Its proponents see the electorate as the ultimate and only voice that matters. “The people have spoken”, the current Israeli government loves to remind us. This cliché is used to justify the evisceration of the jurisdiction of the Supreme Court, turning it into a body with no authority on matters of contentious state policy. Because. The people, they say, put that matter to rest in the election. They voted to give carte blanche to the governing coalition.

This assertion is bunk. When the electorate voted it had no detailed knowledge of the planned judicial reforms. It also had no information regarding the scope of judicial and economic reforms that would be negotiated in coalition agreements. And by all accounts, the majority of Israelis do not support the government in its overreach.

Interestingly, a very detailed draft of the judicial reform legislation was reported to have been written by a Jerusalem-based think tank, the Kohelet Forum, which is funded by two Philadelphia-based hedge fund billionaires.  Within days of the signing of the final coalition agreements the draft legislation miraculously appeared – finessed and detailed – and the public collectively gasped.

The Kohelet proposals would have politicians controlling the judicial appointment process (which is not the solution but the current system could surely be reformed). They would also introduce the “override clause”, which would allow the Knesset to overrule any decision of the Supreme Court that it considered to be incorrect or too activist. The slimmest majority – 61 votes – by partisan interests, would be the sole law-maker and authority.

Having a court gutted of power in a democracy with no upper chamber is a very big problem. It invites a tyranny of the majority, which is not always correct or appropriate. Democracy is a complex system of institutions that check and balance the exercise of authorities to ensure that extremes are avoided.

The key drivers of this reform blitz are Natanyahu loyalist and minister of Justice, Yariv Levin, and Religious Zionist MK, Simcha Rotman, a self-described constitutional law expert. Rotman also chairs the Knesset Constitution, Law and Justice and has, apparently, been working on the judicial reform issue for many years. In a recent, lengthy podcast interview with Times of Israel, Rotman shared his understanding of how parliamentary democracies are intended to work. Every country, he explains, has a constitution - in the sense of fundamental rules that establish and constrain government power.   In most countries, he states, they are contained in a written document called a constitution, but in very few countries, like Great Britain and Israel, the constitution is largely unwritten. 

What he fails to mention is that Britain has 800 years of constitutional history and tradition which has resulted in very strong norms. Such principles function to restrict the actions of Parliament, the Executive, as well as the courts.  After only 75 years of statehood, Israel has far fewer and weaker norms that simply do not carry the same gravitas.

Rotman’s explication of the manner in which parliamentary democracies function, set out below, is alarmingly misleading:

…the Knesset is like the parliament in Britain or in New Zealand, in other countries that are a parliamentarian system, the Westminster system. And we have a parliament that is all-powerful. It can basically decide whatever it wants. That’s the system, and that’s the quasi-constitution that we do have. And as part of the legislation, it can say this law is more important than that law. But it’s all legislatures saying and maybe even telling the court, this law is more important than that law.

That’s a regular parliamentary system. It does not have a constitutional value until it’s formalized into a constitution. That’s what a Basic Law is in Israel. We enact Basic Laws in Israel the same way we enact regular laws because that’s the way the system in Israel was always the case. (bold emphasis added)

Any suggestion that Canadian parliamentary democracy operates in the manner suggested by Rotman – an unfettered exercise of majority power – is false. Furthermore, to suggest that the notwithstanding clause is a mirror image of the proposed Israeli override clause, is also false.

Furthermore, Rotman’s contention that the barest majority reflects the will of the people is a dangerously incomplete understanding of the dynamism and many moving parts that comprise a robust modern democracy. For this reason, even when there is a majority in parliament, it is critical that there be institutional checks and balances with the authority to ensure that minority rights are not trampled and that elected officials do not overstep their authority. Should the contemplated override clause become law, there will be no limits on the exercise of power by the majority.

That is not true democracy. It is a narrow, impoverished and dark vision of democracy.

VI. PM Netanyahu’s Very Mixed Messages

Just days before the last election, Netanyahu spoke unequivocally in favour of restraint when undertaking judicial reform. In an interview with CNN’s Fareed Zakaria at the end of October, he described himself as a “19^th century democrat with a small ‘d’ ”, who believes “in the principles that Locke and Montesquieu put forward – that you have to balance between the three branches of government. That’s important.”

Netanyahu continued to reinforce this more sober message, directly distancing himself from any unsound judicial reform plans that may be put forward by the Religious Zionist party, which Zakaria mentioned specifically. As he has done in so many interviews since, Netanyahu was adamant in asserting that he was “in charge.”

On GPS: Another term for Netanyahu?

“Ultimately, I’ve had such [coalition] partners in the past and they didn’t change an iota of my policy. I decide the policy with my party, the largest party by far in the country. We’re a center-right party, responsible party and we are not going to adopt norms for the government that we don’t agree with. And some of these norms,” he said, “I don’t agree with. So they won’t happen.”

“In Israel,” he continued, “you have to address some of that imbalance because its different from most other parliamentary democracies. It’s been thrown a little out of kilter but you don’t destroy one these nodes of the triangle because then you’re really out of balance. So – whatever we do in judicial reform will be very measured and very responsible. And my record shows that.”

Bibi further assured Tapper that there was no issue with an override clause with 61 votes and said that this is done in many places. He dismissed impatiently Tapper’s attempt to discuss “checks and balances.”

“Don’t worry,” he muttered. “There will be checks and balances.”

But there won’t be. That’s the thing. The power of the ruling coalition will be boundless.

VII. Backlash in Israel and Abroad

Since MK Rotman unveiled his reform plans, opposition has been widespread, vociferous and intense. For the last six Saturday nights, between 100,000 and 200,000 Israelis have jammed central Tel Aviv to protest what they regard as a threat to the soul of the country: liberal democracy, a vibrant economy and a strong, centralized security command.

Whereas Netanyahu and his coalition allies have taken to denigrating protesters as disgruntled lefties, there is nothing partisan about the dissent which has become more strident and widespread. Former Likud ministers, IDF chiefs of staff, generals, heads of Shin Bet, prime ministers, Nobel Laureates, Physicians, Lawyers, Judges, hi-tech workers and billionaire CEOs, Governors of the Bank of Israel -  present and former and venture capitalists have all expressed alarm at the speed and scope of the reforms. Several days ago, Yossi Cohen – former head of the Mossad, National Security Adviser and until recently a close adviser to Netanyahu, warned that Israel’s cohesion and resilience will be severely damaged if the reform process is not slowed down.

Israelis understand that the will of the slimmest majority in the Knesset, combined with a neutered Supreme Court, presents existential threats to a liberal democracy. In fact, a recent poll commissioned by Kan – the Israeli Public Broadcasting Corporation - Israel’s confirms this fact; an eye-popping 62% of Israelis oppose the broad and hurried judicial reforms, as do 42% of people who voted for parties in the governing coalition.

Overseas, primarily in America, the government has been barraged with harsh criticism. In response, Netanyahu has reportedly reached out directly in the last few weeks to the top leadership of J.P. Morgan & Co. and Goldman Sachs, as well as powerful rating agencies that have murmured about possibly downgrading Israel’s credit. Such overtures are quite unconventional and considered to be within the purview of the Governor of the Bank of Israel, who was likely not at all pleased with the Prime Minister’s freelancing.

Lawrence Summers, a prominent economist, former president of Harvard University and Secretary of the Treasury in the second Clinton Administration, among numerous other high public offices, was also approached by Netanyahu to speak out to quell the fears as being unfounded. But Summers did not comply. In fact, he did the opposite, voicing his concern with the planned reforms. Legal and human rights giant, Alan Dershowitz, who is a long-time personal friend of Netanyahu’s, has also been forthright and clear in stating his strong opposition to the reform package.

And then, on Sunday night, President Isaac Herzog made an impassioned plea to the nation – and the government – to tone down the incendiary attacks and pause. Recognizing justifiable discontent with the justice system, Herzog nevertheless urged the government – and specifically Simcha Rotman – to delay introduction of the reform Bill that is scheduled to be tabled in the Knesset for First Reading this week. Almost immediately, Rotman rejected this accommodation out of hand, reiterating that time is of the essence and change long overdue.

Herzog – and many other prominent Israelis – have warned of civil strife and violence and urged the governing coalition to approach such significant change in a slower and more considered manner.

At press time, there were reports that Rotman and the government had agreed to engage in consultation on the issue with the Opposition but continued to resist pressure to slow down the legislative process.

Close to 100,000 Israelis demonstrated in Jerusalem on Monday, a city which is typically not host to large gatherings related to civil protests. People travelled from all over the country to be present. Friends of mine who attended said it was a very somber affair. Israelis are very, very worried that their country is on the verge of civil war, or a death spiral.

VIII. Waiting…

For months now, Bibi has been ignoring the Israeli media and population and focusing his considerable persuasive powers elsewhere. He draws on his extensive public service record, reputation for managing complex coalitions and clashes of interests to responsible ends. He assures his audiences that he is a liberal democrat, secular and supports LGBTQ and minority rights. And he is a prudent leader, he says, reminding his listeners of his love and devotion to the state of Israel, of his iconic brother, Yoni, who fell in the Entebbe rescue, and the dedication of his whole family to the enterprise of modern Israel.

And yet, his government is carrying on like a bull in a china shop, smashing everything in sight.

I’m sure he meant all the things he said - at the time.

But, as of Tuesday night, the government  remained committed to barreling ahead with its plans to push the legislation through at a breakneck pace. MK Rotman has agreed to meet with Opposition leaders to discuss their concerns but adamantly refuses to slow the process. And the Opposition says that discussions are pointless if the government won't actually listen. Speaking earlier today with reporters, Rotman and Religious Zionist MK and party leader, Bezalel Smotrich, stated clearly that there will be no compromise in the justice reform legislation. 

If there is not even an intention to engage in good faith discussions then there is no point in going through the motions. It all looks very bleak.

Where is the moderate version of PM Netanyahu that was so dominant when speaking with American media? The Netanyahu who is a "liberal democrat"? The Netanyahu who calls the shots and controls the extremists in his coalitions?

Only PM Netanyahu, at this point, can prevent this potential disaster. Yet, he's gone silent. 

And the country's future hangs in the balance.

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*Professor Adam Dodek assisted in the preparation of this article by providing comment and guidance regarding Canadian constitutional issues only, which is his area of expertise. Read Adam’s bio here.

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Note 1: Until 1982, the Canadian Constitution consisted of various acts of the British Parliament. Every time Canadians wanted to amend a provision of this Constitution they were required to request permission from the U.K. Parliament to do so. Over the course of six decades dating back to 1927, Canadian governments had tried – and failed - to “patriate” their Constitution – to make it truly “Canadian”. In 1982, Canadian Prime Minister Pierre Trudeau finally succeeded.