Opinion: Israel’s democracy is actually a lot like Canada’s

The Supreme Court of Israel covered in snow. (Credit: Israel Government Press Office)

Jason Shvili is an Israeli freelance writer living in Toronto.

Late last month, Prime Minister Justin Trudeau said that his government was “very concerned about the judicial reforms that the Israeli government is determined to move forward with.” I’m guessing there are plenty of Israeli and Jewish Canadians who are also concerned about the Israeli government’s proposed reforms to the country’s justice system, especially given all the media hype about the reforms being a danger to Israel’s democracy. But in fact, the reforms proposed by Prime Minister Benjamin Netanyahu, if implemented, would make Israel’s judiciary a lot more like that of another democratic country—Canada.  

Netanyahu’s government seeks to change the way the Israeli justice system works, particularly in regards to the country’s Supreme Court. The government has already passed one element of the proposed reforms, limiting the Supreme Court’s use of “reasonableness” to strike down decisions of the government. Other proposed reforms include changing the way Supreme Court justices are chosen and giving Israel’s parliament, the Knesset, the power to override decisions of the Supreme Court.

None of these reforms should concern anyone who holds Canada’s justice system in high regard, because the proposals will make Israel’s judiciary more like its Canadian counterpart. For example, unlike Canadian Supreme Court justices, selected by the prime minister from a short list prepared by an advisory council, Israel’s Supreme Court judges are chosen by a selection committee composed mostly of unelected officials.

The Netanyahu government wants to change this committee so that elected officials are a majority, thus increasing the Supreme Court’s democratic accountability to the people. Anyone who holds Canada’s justice system in high esteem shouldn’t have a problem with elected officials choosing Supreme Court justices, because that’s what happens here. Our prime minister—an elected official—ultimately chooses the judges who serve on this country’s Supreme Court.

By the same respect, anyone who admires Canada’s justice system shouldn’t be concerned about Israel imposing limits on its Supreme Court’s ability to strike down legislation. After all, Canada has limits on the court’s ability to override the decisions of elected officials. In Canada, the Supreme Court can only overturn legislation that is ruled to be unconstitutional.

But Israel has no constitution. The closest thing to a constitution that the Jewish state has are its Basic Laws, including Basic Law: The Judiciary. Unlike the Canadian Charter of Rights and Freedoms, however, Israel’s Basic Law: The Judiciary does not specify limits on the Supreme Court’s ability to overturn legislation. Thus, up until very recently, Israel’s highest court could override any piece of legislation or government decision based solely on one very subjective criterion—reasonableness.

The most recent example of the so-called reasonableness clause occurred in January, when the Supreme Court ordered Netanyahu to fire Aryeh Deri, an elected member of the Knesset, from his cabinet because it viewed his appointment as “unreasonable” due to Deri’s prior criminal convictions. This ruling came despite the fact that no law prevents him from serving as a minister.

The Israeli government’s recent move to restrict the use of “reasonableness” means that, as in Canada’s Supreme Court, Israel’s highest court now has limits on its ability to overturn decisions of elected officials.

The Netanyahu government’s original program to reform Israel’s judiciary also included an override clause that would have allowed the Knesset to overturn Supreme Court decisions. This would be similar to Canada’s notwithstanding clause, which allows the federal and provincial governments to override the charter in certain cases and nullifies the possibility of judicial review for five years.

 It is widely believed, however, that Netanyahu’s government will no longer move forward with this part of its original judicial reform package. Still, the fact that Canada already has a clause that allows elected officials to override the charter should put anyone concerned about a similar measure being implemented in Israel at ease.

Few people in Canada believe that our justice system is undemocratic. So why should anyone here fear judicial reform in Israel that would make the Jewish state’s justice system more closely resemble Canada’s?