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פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

The Proper Procedures for the Enactment of Constitutional Reform: Summary of Position Paper #3

עודכן: 15 במרץ 2023

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 due to the unprecedented attack on the rule of law and democracy in Israel, following the intention of Israel’s 37th Government to enact significant and drastic changes to Israel’s constitutional law without proper procedures.

●      The proposed changes for “reform” of the Israeli judicial system cannot be seen as an incremental stage in the enactment of Israel’s Basic Laws or in their augmentation. Rather, they constitute a substantial and fundamental change to Israel’s constitutional structure, profoundly altering the relations among the judicial branch on the one hand, and the legislative and executive branch on the other. The proposed “reforms” entrench a new set of constitutional “rules of the game”, that are, in practice, largely irreversible, and, as such, should be addressed substantively as the actual formulation of a constitution.

●      Substance aside, the process through which the coalition is passing the legislative amendments constituting the “reform” is not the proper process by which a constitution is created. The process is set to be hurriedly pushed through in the span of a few weeks, led by the coalition without any negotiation or attempt to reach consensus with the opposition, and pays no more than lip service to consultation with the public and experts, despite the strong public protests voiced against the "reform". This represents the exact opposite of how constitutions are to be written. The establishment or profound change of a constitution requires broad consensus, and a procedure different and distinct from ordinary political procedures. Granting agreements the status of constitutional norms (in the case of Israel, in the form of Basic Laws) elevates them to supreme status. It is, therefore, imperative that the processes through which those agreements are reached ensure full participation of the various ethnic, religious and socio-economic sectors of society in the decision-making process, and enable careful consideration of the changes' implications.

●      The proposals presently on the agenda aim to cement fundamental rules of the Israeli regime, yet the process by which they are legislated does not even meet the benchmarks for the proper enactment of ordinary legislation, as members of the opposition and of the public are interrupted and expelled from the parliamentary committee discussions of the proposals without being able to fully present their views. The process through which the government is pushing through its proposed “reform” is, therefore, illegitimate and will significantly impair the legitimacy of the reform, once adopted.

●      We base this normative position regarding the requirement of participatory and careful procedures for instituting fundamental constitutional changes on several grounds: the basic tenets of constitutional and democratic theory; the principles of legislative theory; long-rooted legislative traditions of the Israeli Parliament; and finally, judicial precedent and the basic principles of the Israeli legal system, deriving from its fundamental values as both a democratic and Jewish state.

A detailed position paper in Hebrew is available on our website.

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