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No Judicial Review of Basic Laws Will Fatally Harm Equality and Democracy’s Core

>> Read the full Position Paper

 

This position paper, which was submitted to the Knesset Constitution, Law, and Justice Committee on 12 February 2023, discusses the proposal to abolish judicial review of Basic Laws. Zulat’s position is that the proposed amendment might totally dismantle Israel’s already fragile constitutional fabric. It will enable the government, which has full control of the Knesset, to enact Basic Laws that are personalized and that enable conflict of interest according to its needs at any given time. The proposal will block any judicial review of the substance of Basic Laws, and is actually intended to curb the application to Supreme Court rulings of the “abuse of the constituent authority” doctrine, which ascertains that a Basic Law conforms to constitutional norms in terms of its stability, generality, and compatibility with the existing constitutional fabric.

For example, the coalition could pass an amendment extending the Knesset’s tenure if it sensed a decline in the polls prior to an election, yet another amendment could preemptively extend the tenure of a prime minister for years on end (separately from the Knesset’s tenure), a third could allow MKs and government ministers to receive a salary or donations from private entities without any restrictions, and a fourth could increase the Knesset’s size for the purpose of a specific vote if uncertain of a majority.

The proposed amendment will allow the government to enact laws whose substance will fatally harm the principle of equality and the core of democracy, will legitimize corruption, and will impede blocking dangerous, corrupt, and undemocratic Basic Laws early in the legislative stage.

Zulat recommends to the MKs representing the democratic public:

  • Although the proposal deals specifically with the question of judicial review of Basic Laws, it is inseparable from the comprehensive move to effect a regime revolution and allow the government to gain full control over the legislative and executive branches, given the Knesset’s traditional position against such review.
  • MKs must refuse to engage in a debate before the government reveals all the “chapters” of the legislation package it intends to promote based on the coalition agreements. The “salami method” is designed to confuse MKs and the public regarding the comprehensive move planned by the government to effect a regime revolution. MKs must refuse to discuss any proposed amendment separately. Instead, they must treat them as a single package that will transform Israel into an authoritarian regime and completely eliminate the checks and balances between the branches of power.
  • MKs must refuse to block the judicial review of form and substance of Basic Laws and not make do with a “compromise” allowing a review limited to finding gross errors in the legislative process (e.g., if the amendment contravened a special majority caveat), given that a government with absolute control of the Knesset would be able to enact Basic Laws in a seemingly correct procedural manner, which could nevertheless seriously harm the principle of equality and the core of democracy, both in form and substance.

 

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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.