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Alon Tal
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Note to Rothman: Israel is not New Zealand

Replacing judicial review with non-binding 'declarations of inconsistency' is a terrible idea – here's why

The battle to preserve Israel’s Supreme Court’s authority to review the constitutionality of the Knesset’s laws is raging in full force. This is just one of the many ill-advised reforms the new Netanyahu government is aggressively promoting that will weaken the judicial system. Many people see it as the single greatest present danger to Israel’s democracy.

Historically, Israel’s Supreme Court has been cautious about using its authority to invalidate legislation. But occasionally, on average less than once a year, when laws allow egregious violations of human rights, the court intervenes.

For instance, when the Knesset passed an “Infiltrator Law” in 2013 that authorized border police to hold illegal African migrants in an internment camp for a year without due process or a judicial hearing, mercifully the court struck it down. Israel’s Supreme Court has long seen itself as a champion of human rights and has not hesitated to be activist and intervene when there are gross violations, even if it means going head-to-head with the country’s legislative branch.

That’s why so many of us are worried over the government’s many proposals to change the present balance between the courts and the parliament, limiting the Supreme Court’s ability to conduct judicial review of legislation. The new rules would require a unanimous 15-justice decision for a law to be disqualified as unconstitutional. If the Knesset is unhappy with such a decision, the narrowest possible parliamentary majority of 61-59 could overturn the Supreme Court decision and reinstate the law, notwithstanding a ruling that defined it as unconstitutional. In short, the reform clears the way for a tyranny of a narrow majority.

As the controversy grew more acrimonious, President Herzog implored both sides to accept a ceasefire in the conflict and start talking. There are some initial signs that a compromise may yet be considered by Netanyahu and his key judicial reform lieutenants, Likud Justice Minister Yariv Levine and Religious Zionist party Judiciary Committee chair, Simcha Rothman. It is certainly important for all sides to listen to each other, to be open to new ideas and give negotiations a chance. But the fact that the government insisted on pushing through initial readings of these laws this week, rather than freezing them (as the president requested) raises real questions about whether their declared willingness to have an open dialogue is disingenuous and merely a ruse.

This week I testified at the Knesset judicial committee about the proposed limits on the Supreme Court’s judicial review authority. Committee chair, MK Rothman opened the hearing, waxing ecstatic about a new development in the New Zealand constitutional system, about which he had recently learned. For those unfamiliar, New Zealand’s courts have never been authorized to conduct judicial review about the constitutionality of its parliament’s laws. Nonetheless, in August 2022, a law was passed that authorized New Zealand’s courts to publish a ‘declaration of inconsistency’ — a formal statement, that an Act is inconsistent with fundamental human rights protected by the New Zealand Bill of Rights Act. The declarations are non-binding but presumably will resonate in the corridors of power.

The United Kingdom also does not allow its Courts to invalidate parliament’s legislation. But for over twenty years now, when judges see danger signs of human rights violations or indications that a law is unconstitutional, they can release a similar ‘declaration of inconsistency’. These declarations also fall short of cancellation, but presumably send a clear sign of displeasure, in the hope that parliament will get the hint. Rothman wondered out loud: “Perhaps this could be a good system for Israel?”

Well actually: “no”.

As luck would have it, I have taught at the University of Otago Law School (NZ’s finest!) on two sabbaticals and subsequent summer school sessions. So I actually know a little bit about New Zealand and its legal system. Rothman allowed me to explain my lack of enthusiasm to the committee.

Ever since the passage of the Constitution Act in 1986, Kiwis enjoy a full range of democratic, constitutional provisions. Israel, on the other hand, has a motley, incomplete, collection of Basic Laws, which lacks many basic constitutional principles, such as protecting freedom of conscience or freedom of speech.

Moreover, the NZ parliament’s system of geographic representation means that parliamentarians are more beholden to their local constituents than to their party bosses. This makes the legislature relatively independent and contributes to a bona fide separation of powers between the three branches of government, so critical to checks and balances in a democracy.

In contrast, Israel’s proportional representation traditionally spawns a legislature that is completely beholden to the coalition government. As any high school civics student knows, given the executive branch’s domination of the Knesset, Israel, for all intents and purposes, has only two independent branches of government. This makes judicial review by the Supreme Court particularly important in ensuring the integrity and constitutionality of the country’s laws and executive actions.

I believe that the differences run even deeper, reflecting fundamental cultural disparities. I always like to think that the relatively gentle and ingenuous New Zealand political culture reflects the country’s unique ecological circumstances. Anyone who visits New Zealand is immediately struck by the “ecological naiveté” of birds who happily fly right up to humans to get a closer look. This curious behavior is explained by the historic lack of natural predators. From time immemorial, there simply were no indigenous mammals on the remote island. New Zealand’s domestic political system also evolved in a world without political predators and national enemies. This is manifested in a decided civil and consensual political culture.

Israel’s circumstances are not even remotely similar. Our country’s location, surrounded on all sides by hostile neighbors, creates constant security challenges that need to be balanced with democratic norms. This requires constant judicial oversight to ensure that legislators get it right. An active Supreme Court is critical for the country’s ever-battered image as a bastion of democracy, equity and legal integrity.

Anything that weakens the Supreme Court judicial review authorities undermines Israel’s signature claim of being the only real democracy in the Middle East. It also makes IDF officers and defense officials more vulnerable to the ever-hostile forces at the Hague’s International Court of Justice. Lacking any natural enemies, New Zealand doesn’t need to invest very heavily in “hasbarah” or protecting its images. Presumably, watching the Lord of the Rings films and a long history of neutrality is enough.

Also, New Zealand’s relative societal homogeneity matters. The pervasive Anglo civility has allowed the country to pass up judicial review, without threatening social stability and harmony. Israel’s situation is fundamentally different. Until the country truly learns how to celebrate its cultural diversity there will be discontent and societal conflicts that continue to simmer. The policy upshot of this is that the country’s disparate ethnic “minorities” and sundry tribes all need to feel that they are treated fairly, lest tensions boil over and get out of hand. One critical way to assuage Israel’s societal volatility is to create a sense of comfort among all citizens, that there is constant and conscientious judicial oversight.

In short, New Zealand’s idiosyncratic circumstances and legal system are of great academic interest. But their judicial system certainly does not offer a model for emulation. On the contrary: our country will be better off if it formally strengthens the Supreme Court’s existing system of active judicial review, ensuring the protection of human rights through laws that conform to basic constitutional principles.

About the Author
Alon Tal is a professor of Public Policy at Tel Aviv University. In 2021 and 2022, he was chair of the Knesset's Environment, Climate & Health subcommittee.
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