Is Israel a Democracy like Canada? Not without a Constitution

Earlier this year, Israel’s Knesset announced plans to overhaul pieces of its judiciary, claiming that it has too much power over the legislative body. This announcement came just weeks after Prime Minister Benjamin Netanyahu was elected to a sixth term and has been faced with an outcry of disapproval from the nation. April 22, 2023 marked the 16 th consecutive week of protests, attended by an estimated 380,000 Israelis. These protests continued even after Netanyahu called for a halt to the voting on judicial reform in the Knesset over Passover, April 5 to April 13, and to resume when the Knesset was back in session at the end of April.

What does this have to do with Canada? In his address to the nation last month, Netanyahu asked his fellow Israelis if Israel was a democracy in the same way the United States, New Zealand or Canada are. The answer is complex, but the Government of Canada has yet to respond other than by an unprovoked comment made by Prime Minister Justin Trudeau on April 5, 2023 stating his deep concerns about the direction the Israeli government is taking regarding both the judicial reforms and the protests.

Questions have been raised about the strength of the democracy of Israel, a nation that, unlike Canada, does not have a written constitution. If Netanyahu wanted to strengthen the democracy in his country and make a true comparison to Canada, he wouldn’t be looking to consolidate power from one branch of government to another. He should be leading his government, on both sides, to write a constitution. Canada may be voicing some concerns, but should be encouraging the young democracy to solidify the division of powers and human rights of its people in a normal constitution.

Israel has thirteen laws that together are meant to act as a constitution these are the Basic Laws, but there is some contention over if these laws are superior to other laws. The Basic Law: Human Dignity and Liberty (1992) aims to protect the basic rights of human beings, the sanctity of life and the freedom of person in Israel. This law is meant to act similarly to the Canadian Charter of Rights and Freedoms. However, in Canada these rights are embedded in the Canadian Constitution Act, 1982, making them the supreme law in Canada. It is clear in the Canadian Constitution that the judiciary is to uphold these rights.

Netanyahu’s proposed judicial reforms are targeted towards changes to how the judges are selected and to the ability of the Supreme Court to overrule legislation from the Knesset that it see as breaking the Basic Laws. Currently, the judges for the Supreme Court are selected by a vote of the Committee for the Selection of Judges, requiring a ‘yes’ from seven of the nine members. These members come from each branch of the government, including, the President of Supreme Court, two justices of the Supreme Court who are elected by other judges, the Minister of Justice, another minister assignment by the government, two selected members of the Knesset and two representatives from the Bar Association.

Seems pretty fair, right? Maybe the Canadian government could take a pointer from this. However, Netanyahu’s government want to change the selection committee so that there are less judges on the committee and more government appointees, allowing the government appointees to form a majority of the committee’s members. This would mean that Netanyahu’s government could selected more conservative judges who are less likely to veto the legislation they bring to the Knesset.

Additionally, the reforms would seek to take away some of the authority of the Supreme Court to strike down laws deemed “unconstitutional”. Currently twelve of the fifteen judges are needed to strike laws from the Knesset that are believed to violate Basic Law: Human Dignity and Liberty (1992). The Israeli government would make changes so that the vote must be unanimous by the judges and to include an override clause so that the Knesset could overrule a strike down from the Supreme Court, a bit like the notwithstanding clause in Canada. The Knesset would not only be able to select the judges meant to uphold their Basic Laws, but also to overrule the court when they disagree. That’s a lot of power for one branch of the government.

The concern from protestors is that with a right-wing government making these changes there is a risk for potential laws that are harmful to the democratic values of the nation. The people want to preserve their rights and keep a balance to the democracy they are striving to live in. Prime Minster Trudeau should do more than voice his concerns, he should be encouraging Prime Minster Netanyahu and his government to strengthen the democracy of Israel by taking a progressive step towards the creation of a written constitution. Where his predecessors were unsuccessful, Netanyahu could create unity in his nation through the establishment of equal separation of powers, checks and balances of their democracy, and the rights of the people through the protection of a formal constitution.

Sarah Suchotzky is a Master’s student at the University of Calgary’s School of Public Policy.

Image credit: AVSHALOM SASSONI/MAARIV / The Jerusalem Post April 23, 2023