Antonio Bar Cendón, Jean Monnet Professor ‘ad personam’ of European Union Law and Politics, Professor of Constitutional Law and Professor Emeritus at the Law School of the University of Valencia, has published an opinion article in Valencia Plaza on Israel’s constitutional reform.
Antonio Bar, our colleague and co-director of the project (PI2), has recently published an article in the Valencian newspaper Valencia Plaza where he highlights the repercussions of the constitutional reform that the Israeli Prime Minister, Benjamin Netanyahu, wants to carry out, which implies a clear breach of the Rule of Law.
First, Bar has made a reference to the concept of “illiberal State” used by Hungarian President Viktor Orbán in July 2014, which has had enormous significance. According to the author, “what he was trying to highlight, however, and without being aware of it, is an old paradigm that torments democracy and liberal thinkers on whose conceptions it is based. It boils down to one question: what is truly the source of the legitimacy of democratic government, representation or management efficiency? In simple terms, which is more important, the procedure, the mechanism through which government is governed – full respect for fundamental rights, respect for the division of powers (Rule of Law) – or the full satisfaction of the needs and aspirations – not only material, but also spiritual, religious and ethical, or cultural-identity – of citizens?”
In this sense, our colleague has explained that Orbán thinks that in order to solve the problem of democracy, the mechanisms and values of liberal democracy must be adapted to the needs of the community, dispensing with any rule or guarantee procedure in favor of mechanisms that satisfy those needs. This way, the Hungarian leader is establishing the theoretical basis to justify authoritarian regimes that are completely opposed to the ideal of the Rule of Law.
“The nation […] is not a simple sum of individuals, but a community that needs to be organized, strengthened and developed, and FOR THAT MATTER, the new state we are building is an illiberal state, a non-liberal state. It does not deny the foundational values of liberalism, such as freedom, etc. But it does not make this ideology a central element of the state organization, but rather applies a specific, national, particular approach instead”
Viktor Orbán
Secondly, Antonio Bar has introduced the political situation in Israel, characterized by governmental instability and constant elections in the last decade (6 in 10 years). The winner of the last elections held on November 1, 2022 was Netanyahu, candidate of the Likud party, with 23.41% of the votes and, currently, he presides over a coalition government formed with five other parties (the Religious Zionist party; the Jewish Power; the Noam; the Shas; and the United Torah Judaism). It is a coalition that brings together from the traditional secular right to the most radical political-religious positions, representing 48.37% of the electorate, with a parliamentary majority and with the power to impose an illiberal reform.
The constitutional reform
As Bar has explained, the main goal is to reduce the capacity of the Judiciary to control the actions of the Government and to nullify Knesset legislation deemed unconstitutional. To this end, the plan is to carry out a series of reforms affecting various fundamental laws. Since Israel lacks of a written constitution, the founding fathers of the State in 1948 opted for “an incremental constitution, formed by the progressive approval of a series of Basic Laws (13 are in force today), which make up the constitution of Israel.”
The author has pointed out that “following the British model, these laws are passed by Parliament by the same procedure as ordinary laws -although some of them require a qualified majority for their amendment or repeal-, so it is not very clear whether their character or rank is superior to that of other laws, or, what is more important for these purposes, what power the courts of justice may have to protect them against their violation by other ordinary laws of Parliament”.
The Supreme Court of Israel has been shaping the Rule of Law and ensuring compliance with it through its jurisprudence, “progressively establishing a doctrine determining the position of these Basic Laws. According to the judicial body, by the mere fact of having been elaborated with that title of “basic law”, they occupy a superior position in the legal system and, therefore, they cannot be violated by ordinary laws.”
Supreme Court functions:
| Constitutional control over ordinary laws | Supreme defender of Fundamental Rights |
| Ordinary oversight of the legality of government action | Guarantees the Rule of Law |
Furthermore, Antonio Bar has emphasized that the Rule of Law in Israel has a weak flank because many of its provisions are not applicable to the occupied Palestinian territories, and therefore the fundamental rights of this population do not receive the same protection from the Supreme Court in relation to the protection of the rights of Israelis.
A) Reforms that have begun parliamentary procedures
1. Limitation of the Supreme Court’s power to control the constitutionality of ordinary laws by establishing a complex procedure that nullifies this power.
2. Reform of the Judges Selection Committee to limit the power of the judges themselves to participate in the appointment process. Increasing the power of the government and parliament and, therefore, of the government majority in that process.
3. Elimination of the power of judges to review the suitability of persons to hold the office of minister, thus preventing the disqualification of those who have criminal convictions, or who are subject to criminal prosecution.
4. Elimination of the power of judges to declare the incapacity of the Prime Minister to hold office, making such incapacitation possible only on physical or psychological grounds – not political or legal – and that the authority to declare such incapacity be vested only in Parliament.
5. Legalization of the death penalty for those convicted of terrorist crimes.
B) Reforms about to start parliamentary procedures
I. Reform that seeks to eliminate the so-called “principle of reasonableness” (a principle of jurisprudential construction that allows judges to nullify administrative decisions that appear to be legal, but are “unreasonable” in their practical implementation).
II. Reform of the role of the State Attorney General and the Government’s legal advisors.
In Israel, the Attorney General assumes the function of general prosecutor of crime and also that of general legal advisor (similar to the Attorney General of the State in Spain) whose reports are binding and which legitimize him to take the Government to the courts of justice, in the event that his recommendations are not heeded. This reform deals with the second function to eliminate the control of legality that limits governmental action.
Conclusion
All in all, our colleague has concluded that this constitutional reform completely dismantles the structure of the Rule of Law in Israel. “It is a radical and sectarian counter-revolution that weakens the foundations of the democratic legitimacy of the State of Israel and, as a consequence, its own stability and the very stability of that tormented area of the world.”
Bar Cendón, A. Israel on the illiberal path
