Alan Baker: Israel still to be just democracy if judicial reforms pass

Former Israeli ambassador to Canada Alan Baker advised against the proposed judicial reforms provision for political appointments of government legal advisors, but cautioned against extreme rhetoric about the reforms, and assured that Israel would remain a democracy if the reforms passed.

"I'm not a great expert in internal Israeli constitutional law. My field is international law," Baker conditioned, "but I've accompanied Israel's legal system for many, many years, even before [former High Court of Justice President Aharon] Barak's," reforms and bringing in legal activism.

Baker said that he didn't see an issue with returning Israel's legal system to where it was prior to the 1990s constitutional revolution, in which the High Court determined that the Basic Laws had constitutional supremacy and allowed for judicial review.

"Israel's court system and legal system was always considered to be one of the most progressive and good legal systems before this institution of legal activism or judicial review," said Baker. "So there's no reason why if the legal system is limited or the activism of the Supreme Court is limited to a certain extent, Israel shouldn't continue to consider to be seen a major progressive element in the world of international justice."

Baker said he wasn't part of the "mass hysteria" that has gripped Israel. Protests against the reform had shaken Israeli cities every week on Saturdays.

"I'm sure that ultimately the thing will go through a process of drafting and negotiation and the outcome will be something different," said Baker. "The way that it's being presented, which I agree is a brutal way of presenting it. I don't like the way has been trying to push this in such a rude way. That's not the way do things."

However, Baker said that he understood there were problems with judge selection and the political appointment of government legal advisors.

"I was the legal adviser of a foreign ministry and I had many altercations with the ministers that I served," said Baker. "They didn't like my opinion and I didn't want to act in accordance with their opinion. In many instances, I went to the Attorney General and said, look, the Minister doesn't want to fulfill my legal advice. You have to deal with it."

The job of legal advisers it to say "No, minister," not "Yes, minister."

Another form of protest

In another case of political appointments, Israel's most recent ambassador to Canada resigned in protest over the judicial reforms. He was against political appointees in diplomacy, saying that it created a glass ceiling for career diplomats.

Otherwise in the diplomatic arena, Baker suggested regarding the advisory opinion on Israel requested by the United Nations of its International Court of Justice that it should argue against the court's jurisdiction over Israel, but not address the content, as they had in 2004.

For the previous advisory opinion, about Israel's security fence, Baker "was then head of the team organizing Israel's defense. Despite the fact that we didn't actually defend ourselves, we raised procedural objections, the actual request for any evidence which weren't accepted."

Regarding the content for this most recent advisory opinion, which Baker noted was non-binding, "I think the Palestinians are being badly advised. I don't know who's advising them, but the question that they've sent to the court is to determine the illegality of Israel's prolonged illegal occupation of Palestinian territories."

Baker explained that in a situation of occupation -- Which Israel rejects is the situation in the West Bank -- "is a perfectly legitimate situation in international law."

"It's a recognized component of the laws of armed conflict," said Baker. "The second part is that they're complaining about they want the court to declare a prolonged occupation is illegal. Now, if anybody had bothered to check how an occupation is defined and whether there is a definition of a prolonged occupation, they would have found that there was a very serious seminar conducted by the International Commission of the Red Cross several years ago, where they went into the whole analyzing the whole situation of occupation. How long is an occupation?"

The conclusion was that it depends all depends on the circumstances of the case.

He also noted that "according to international law, as soon as one party agrees that the other party is present in what it claims to be territory, it's no longer an occupation," and both Israel and the Palestinians were parties to the Oslo Accord.