The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney generals and legal advisors, and to violate human rights. In this position paper, we address how the reforms infringe upon the right to vote and to stand for election and, more generally, impair the free and competitive nature of Knesset elections.
Summary of the Main Points:
● Proponents of the regime change employ terms such as ‘will of the majority’ in their attempts to justify restricting judicial review. Their characterization of the regime changes as strengthening democracy are misleading and false. In fact, the coalition’s plan will gravely impact the most fundamental of democratic rights: the right to vote and the right to stand for election. Thus, purportedly in the name of democracy, the coalition is facilitating the violation of the conditions critical to democracy’s existence in the most basic and narrow sense, namely a determination by the people, through elections, as to who will govern.
● The right to vote and the right to stand for election are fundamental political rights enshrined in many constitutions. They are not merely personal rights, rather they constitute essential conditions for the existence of a democratic regime, critical to instilling fair and equal competition among political ideas and candidates to represent citizens of the state.
● In order for the right to vote and the right to stand for election to be upheld, courts must be independent from the government, with broad authority to exercise judicial review over legislation and governmental actions. This is because the greatest fear of abuse of power by the government is in connection with these rights. The notion that there is greater justification for the legislature to be limited and for judicial review to be broad with respect to the right to vote and to stand for election in comparison with other rights is even expressed directly in Canadian law, which excludes the right to vote and the right to stand for election from the override mechanism.
● In Israel, recognition of the essential character of the rights to vote and to stand for election led to the availability of judicial review of legislation to preserve those rights, even prior to the enactment of the Basic Law: Human Dignity and Liberty in 1992.
● The necessity of judicial review of legislation, including Basic Laws, which threatens the rights to vote and to stand for election, is of particular importance in Israel, in light of the Knesset’s exacerbated conflict of interest relative to elections. As a legislative authority, the Knesset is influenced by election law, and its members are directly affected by the rules governing elections. As a constituent authority, the Knesset establishes these very rules. Since the establishment of the State of Israel, this conflict of interest has led to attempts to undermine the competitiveness of elections through legislation. Although judicial review of legislation has prevented some of these attempts, it is insufficient, considering the very limited scope of judicial review of Basic Laws.
● Against this backdrop, the coalition’s plans to undermine the independence of the judiciary and significantly constrict judicial review will expose the rights to vote and to stand for election to even more serious violations.
● Poland, Hungary, and Turkey are examples of states where the parliamentary majority endangered free elections through legislative amendments that undermined the independence of the judicial branch and its authority to conduct judicial review of legislation. In Hungary, for example, due to legislative amendments, in all elections since 2010, the Fidesz party has managed to retain a large parliamentary majority, despite receiving less than 50% of the vote in some of those elections.
● Similarly, in Israel, the coalition has already proposed bills that would impair the equality and competitiveness of elections, such as by expanding the possibility of disqualifying candidate lists for the Knesset, undermining the independence of the media, and completely politicizing the Central Elections Committee. The plans advanced by the coalition will allow it to further infringe upon the rights to vote and to stand for election, by nullifying the few protections presently provided these rights under Israeli constitutional law by means of judicial review by an independent court. Thus, the “legal reform” will enable the governing parties to use their power freely to tip the election laws in their favor to ensure that they prevail in future elections.