Judicial reform would weaken Israel's 'crown jewel' courts - Irwin Cotler

Canadian legal expert and human rights activist Prof. Irwin Cotler advises Israel’s new government not to pass judicial reforms that would significantly weaken the Supreme Court.

“Israel’s judiciary is a crown jewel, so if the reforms go through, the judiciary will be undermined,” Cotler said in an interview with The Jerusalem Report. “With judicial review prejudiced and protection of fundamental rights diminished,  it does not end democracy but it may be invoked to challenge the application of the ‘complementarity principle’ (which precludes the intervention of international tribunals when there is an independent judiciary exercising judicial review in the country over which jurisdiction is sought) to Israel and make it more subject to ICC jurisdiction.”

Cotler, who served as a member of the Canadian parliament from 1999 to 2015 and as minister of justice and attorney-general from 2003 until the Liberal government of Paul Martin lost power in the 2006 federal election, is widely considered one of the foremost constitutional law experts in the world. His career spans over 50 years in government and academia, including being a law professor specializing in constitutional and international human rights law.

Given his expertise, he has been called upon in recent weeks to comment on Justice Minister Yariv Levin’s proposed judicial reforms, bringing his life and career back into the limelight. 

He sat down with The Jerusalem Report to discuss the reforms, how it relates to Canada’s reforms that he was a part of, and shared his hopeful message for the future. 

Prof. Cotler, talk about your background in constitutional law, particularly as it pertains to Justice Minister Levin’s proposals.

Much of my response to the proposed reforms comes from being a law professor for 30 years. In particular, I was a visiting professor at Harvard University in 1988, lecturing on comparative law between Canada and Israel. In 1982, Canada underwent a constitutional revolution, resulting in the adoption of the Charter of Rights and Freedoms. Prior to its adoption, Canada was a parliamentary democracy. Afterward, it became a constitutional democracy. This is notable, as it gave the Supreme Court of Canada the role of the guarantor of human rights.

What was the process of passing those reforms in Canada?

The charter that was adopted was not similar at all to what was proposed. Following then-prime minister Pierre Trudeau’s proposal, there developed an 18-month parliamentary and public engagement with the charter, where hundreds of civil society groups made representations to a joint House-Senate Parliamentary Committee on the constitution –  for a meticulous process to create what ultimately was the charter. We say that the charter started as ‘Trudeau’s Charter’ and was enshrined as ‘The People’s Charter.’ This is what we need in Israel – it needs to move from Levin’s reforms to the people’s reforms.

What, if any, concerns do you have about Israel’s proposed reforms?

Israel is a quasi-constitutional democracy due to the Basic Laws – among others, the Basic Law on Human Dignity and Freedom and the Basic Law on Freedom of Occupation, adopted in 1992. People attribute the current state of affairs to a ‘constitutional revolution’ by former chief justice Aharon Barak. However, it was the Basic Laws – Knesset legislation – that brought us here. Since then, the High Court of Justice has been the crown jewel of Israel’s democracy, and the protector of rights and freedoms. At the core of my critique is that the governmental reforms are an anti-constitutional revolution. At the same time, I want to stress, this is neither the end of democracy nor a move towards totalitarianism as it has been characterized by some critics, and surely it does not make Israel an apartheid state; but the reforms are of an anti-constitutional character and will seriously undermine the independence of the judiciary, the rule of law, the system of checks and balances, and the protection of human rights.

Now looking at the proposals, the way the Override Clause is being proposed is concerning. It would politicize the judicial appointment process and erode the role of judicial review political. Indeed, the proposals, if enacted, may entirely preclude and preempt judicial review itself, as it mandates all 15 Supreme Court judges sitting and a unanimity, or at least 12 of 15 judges, to invalidate any legislation to begin with.

You were the justice minister of Canada, which has its own version of the Override Clause. How is it similar or different?

The claims that the Override Clause being proposed in Israel is similar to Canada’s Notwithstanding Clause, our version of the override, is uninformed as it is misleading. They are not similar at all. To make it clear, I opposed the Notwithstanding Clause in Canada, just as I do here. Still, what exists in Canada is not the same. First of all, the Notwithstanding Clause exists within the constitution, whereas what is being proposed in Israel is outside of one. Second, Canada’s clause is limited in time – five years – so that it could go before the court again if necessary. Third, a simple majority of 61 MKs is not reasonable. It should at least be 70. Fourth, it does not apply to all the categories of rights enshrined in the charter. Finally, Canada’s Notwithstanding Clause takes place within a federal system and a bicameral legislature. The Federal government has undertaken never to invoke Canada’s override. Only provinces have invoked it – it is therefore limited in its impact. If it were to pass as is in Israel, the Override Clause would eviscerate judicial review.

What about the appointment process?

The government is correct in saying that in most countries, the executive appoints judges. However, this ignores the fact that democracies have their own sets of unique conventions and traditions. In Israel, the appointment process is the result of a consultative engagement, involving the bench, bar, parliament, and government and academia - and it is working – requiring now the consensus of seven of the nine members of the court for the appointments. In fact, as minister of justice and attorney-general, I invoked the Israeli model as reflective of a ‘consensus decision-making process.’  Simply put, if it isn’t broken, don’t fix it.

There has been much controversy about the Reasonableness Clause. What are your thoughts on that?

We built a similar clause into Canada’s charter, and the principle has been invoked by the judiciary. It protects against discriminatory actions by the executive. In short, the common theme of these reforms can be brought to one word: ‘politicization.’

Do you think that reforms are needed at all?

It is possibly helpful to have reforms, though as mentioned they should result from a sustained deliberative process, which is not currently happening. I would say there are areas that can be reformed, such as provisions re ‘standing’ and ‘justiciability’ – as the process in Israel might be too open-ended in that regard. In general, I believe that the goal of any reforms should proceed with the hope of adopting a constitution in Israel – and thankfully there is a basis in the compendium of Basic Laws. 

Proponents of the reforms have pointed to a lack of engagement by the Left in the process. What do you make of that?

Many in the opposition won’t take part because they think the process is a sham. The international community needs to see it is not. We have to try to get away from polarization whereby those who propose it say it is saving democracy, and those against it say it is destroying democracy. We are having debates in apocalyptic terms – it is wrong. I have serious critiques, but I do not say this is the end of democracy or totalitarianism. When all is said and done, Israel still has a strong civil society, an elected Knesset, a free press and Basic Laws. Let us not say this is the end of democracy but that we are all committed to preserving Israel as a ‘Jewish and democratic state’ – as set forth in its Declaration of Independence. A related issue is that by saying the reforms turn Israel into a ‘dictatorship’ or totalitarian state gives credence, however inadvertently, to those saying things like Israel is an apartheid state. As Pirkei Avot (Ethics of the Fathers) puts it, and my late mother always admonished me, “Life and death are in the power of the tongues.”

Many economists have said that the reforms, if passed, will have adverse effects on the country. Do you agree? And if so, what kind of impact?

I do believe there will be adverse consequences for the economy, security and Israel’s relationship with the US and other democracies. It will weaken Israel’s standing in the court of public opinion. Also, it can impact how Israel’s judicial system is viewed internationally. As I said, there is a principle in international law of ‘complementarity,’ whereby international courts would not take jurisdiction if a country has an independent judiciary and judicial review. Israel’s judiciary is a crown jewel, so if the reform goes through, it will be undermined. With judicial review prejudiced and protection of fundamental rights diminished, it does not end democracy but it may jeopardize the application of the complementarity principle to Israel and make Israel more likely subject to the jurisdiction of international courts.

What do you think are Levin’s motives for these reforms?

I think Levin genuinely believes in what he is proposing. He has always had these ideas, though he was in the minority of the Israeli bar when first proposed. Now he has a responsive group around him. He is an ideologue, and he is not playing politics. He genuinely believes that what he is doing is the best thing for the country and believes that he is restoring democracy. It reflects his own ideological and conservative worldview – but the fact that he is principled does not mean that he is correct.

Where does your passion for law come from?

I was very influenced by my parents, of blessed memory. My father said that ‘Justice, justice shall you pursue’ (Deuteronomy 16:20) is equal to all the commandments combined, and I should dedicate my life to it. But my mother would add that if I am to pursue justice, I must feel the injustice about. I must go in and about the community and beyond and feel the injustice and combat the injustice. Otherwise, the pursuit of justice will be a theoretical abstraction. Through this, I got involved in the two greatest human rights movements in the last half century: the struggle for human rights and Soviet Jewry in the former Soviet Union; and the struggle against apartheid in South Africa. I got involved with the two political prisoners who were the voice and vision of those struggles – Natan Sharansky in the former Soviet Union, and Nelson Mandela in South Africa. In both places, I ended up being arrested. After leaving parliament, I set up the Raoul Wallenberg Center for Human Rights to engage in the pursuit of justice. I was also heavily influenced by my mentor, colleague and friend, and Nobel Peace laureate and Holocaust survivor Professor Elie Wiesel. And I remember my fist visit to Auschwitz in 1962 – the memory has seared itself into me forever. And my first pro bono client on graduation from McGill Law School was the Association of Survivors of Nazi Oppression. So I have seen evil up close, and that is why I say Israel is not a dictatorship, even if the reforms pass. This is not to diminish the importance of the critiques, but they should not be equated with the worst evils of our time. 

Is there anything you would like to add?

I’d like to stress that the Israeli justice system needs reforms, but it requires a sustained and in-depth engagement and deliberate process for them to be ‘the People’s Reforms.’ Ultimately, the hope should be that Israel moves toward adopting a written constitution based on Basic Laws. ■