In this position paper we analyze the changes proposed by the 37th government in light of the positions of the Venice Commission.
The European Commission for Democracy through Law, better known as the Venice Commission, was established in 1990 in order to advise the Council of Europe on issues concerning the rule of law and strengthening democracy. The Commission’s role is to provide information and advice to members of the Council of Europe in legal matters and to assist them in bringing their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law. In 2002 the Commission’s statute was amended so as to allow states that are not members of the Council of Europe to become members. Israel joined the Commission in 2008.
Examination of the Commission’s reports and shows that these steps are flagrantly incompatible with the best practices identified by the Commission in at least three respects: the system of appointing judges, the procedure for constitutional reform, and respect for the rule of law. If these proposals are adopted Israel will stand alongside countries like Poland, Hungary and Turkey in relation to which the Commission has published negative reports in recent years.
This brief review shows that the measures being furthered by the Government of Israel in order to change the constitutional regime of the country, amount to a clear violation of the fundamental values that lie at the heart of the legal principles identified by the Venice Commission. The measures are a manifest breach of the minimal standards that the Venice Commission set out regarding appointment of judges, the proper process for constitutional reform, and the principles of rule of law in modern democratic countries.
It must be stressed that the Venice Commission holds that constitutional changes must be seen in their entirety and in the particular political context. When seen in this light the government’s proposals are particularly problematic.
Adoption of the proposals will make Israel a member of a dubious “club” of member states, whose constitutional and legal structure departs from that accepted in modern democracies.