Lawrence Nowosenetz

Israel’s 75th birthday present


Yom Haatzmaut has come and gone and we can now reflect on the future of Israel as a more mature society and certainly one that has succeeded wildly beyond any expectations. However there is still unfinished business that needs to be courageously completed and that is a constitution for Israel. This the birthday present Israel deserves. Matters have come to the boil with the proposed judicial reforms and it is clear that the reforms have far reaching constitutional consequences and cannot be simply regarded as another ad hoc set of legislation. What must be faced is that the present constitutional structure is an ad hoc patchwork which is cracking under the stress of time as well as a vastly more developed and complex society in Israel whose needs have outgrown the present system.

The history of the governance of Israel has been an incomplete one built on hasty pragmatic shot term compromises. Israel never had the luxury of nascent democratic states in deliberating its constitutional governance in a consultative and unhurried manner. Divisions have wrecked previous attempts at constitution making in the past. Usually the result of a win lose, zero sum mentality by the politicians of the day. Israel must now grow up and face its demons. It is a pluralistic society and no single ideology has a monopoly on the character of the State. It is not the only society that was wracked by deep competing ideological, ethnic and dogmatic differences. They can and must be overcome.

Apartheid South Africa was the ultimate example of a split society in every respect. Yet by 1996 the entire country was totally transformed with a majority government, an entrenched constitution with a bill of rights. We should be asking surely if South Africa managed to transform itself so successfully, the challenges in Israel are not more onerous. How did South Africa do it? Lets briefly look at South Africa under Apartheid.

Only whites had the franchise although constituting a small minority. There were urban blacks and also homelands or Bantustans. Some had limited autonomy and some, ie Bophuthatswana and Ciskei were afforded full statehood but not recognised by international law. The black population was ethnically and ideologically divided. While the ANC (African National Congress) commanded huge legitimacy and support both locally and internationally it was not the only significant group. The Zulu people are a powerful nation many of whom had allegiance not to the ANC but to their traditional king and Inkatha, a Zulu nationalist political party led by Mangusuthu Buthelezi.

White society was dominated by three Afrikaans institutions. The Dutch Reformed Church which endorsed Apartheid , the Afrikaner Broederbond ( a secret organisation of Afrikaans leaders who influenced policy and public appointments), and the National Party the reigning Apartheid government from 1948 until 1996.

The political structure of Apartheid South Africa was based on segregation of races. The blacks were not the only the race group that was discriminated against. People of mixed descent were called Coloureds. Each group had distinct areas where they could live. There were segregated schools, universities and hospitals.

The legal system was harsh. There was censorship, strong police powers and many anti Apartheid organisations (including the ANC) were banned. The constitution was based on the Westminster system with some modifications. English common law was not adopted in South Africa. There was Roman Dutch law.

Originally Parliament had two houses, a general assembly and an upper house called the senate but the senate was abolished. Parliamentary sovereignty prevailed in its most unchecked form. There was a written constitution but it contained no entrenched provisions and could be changed by a simple majority. The only provision that required a super majority was the status of English and Afrikaans as official languages. There was no bill of rights. The constitution expressly prohibited judicial review of parliamentary legislation. The courts were powerless to protect fundamental freedoms and rights, with limited administrative review of governmental action.

The 1980’s saw violent upheavals and States of Emergency were declared which contained harsh repressive measures. In 1991 Nelson Mandela was freed, the ANC and other organisations, including the SA Communist party were unbanned. The era of multiparty negotiations began in 1991 with the formation of CODESA – Convention for a Democratic South Africa. This was a lengthy and arduous process and was not simply a bilateral dialogue between the government and the ANC. All stakeholders in civil society were included. Some organisations refused to participate. There was certainly violence and the talks broke down after the assignation of Chris Hani a Communist party leader. At a late stage Inkatha pulled out, dissatisfied with the new arrangements. This nearly torpedoed the settlement. Credit must be given to the conflict resolution skills of the leaders. Both Nelson Mandela and FW DE Klerk the State President at the time received Nobel prizes for peace. The Rainbow Nation was born.

In1994 an interim constitution was reached and the first democratic elections were scheduled. The ANC won the elections. The final and present constitution was passed in 1996.

Many similar issues to those Israel faces had to be grappled with in the transition from parliamentary sovereignty to a constitutional democracy while taking into account that no two situations are ever identical. A constitutional court was established and the limits and powers of judicial review were outlined. The main provisions of the constitution are protected by the requirement that a 66% majority of parliament is required. The constitution itself underwent a process of certification by the Constitutional Court to ensure that it complied with basic constitutional principles which had been negotiated and agreed upon. After this certification the Constitutional Court does not have the power to review the constitution or amendments. However the High Courts and the constitutional court have the power to review and set aside ordinary parliamentary legislation. The legislation may also be referred back to Parliament for correction.

Judges are chosen by a standing body called the Judicial Services Commission (JSC) which includes politicians but not only from the ruling party. Candidates are subject to public interviews which gives the public some transparency. We have recently seen the politicisation of the appointment of judges in the candidacy of Judge David Unterhalter for a seat on the Constitutional Court. Widely regarded as a superb jurist with a background in human rights, he was interrogated at a public hearing by Julius Malema a politician of the Economic Freedom Fighters (EFF) a party with an extremist Black empowerment agenda. Judge Unterhalter was questioned about his membership of the South African Jewish Board of Deputies (from which he subsequently resigned) and the incompatibility of the Board’s Zionist support with the public values of South Africa. Needless to say his candidacy was rejected.

The Bill of Rights has another layer of protection against being limited by any law in providing that the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom … (section 36 of the constitution). The court is the final arbiter of these criteria.

Reasonableness as a judicial test of legislation and government action in Israel has been heavily criticised by those seeking reforms. Some have viewed it as judicial dictatorship and worse still based on individual policy preferences of the judges. Regarding administrative action the South African constitution states (s 33):

“Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”

Provision was also made for national legislation which gives effect to administrative review in great detail. The Promotion of Administration Act of 2000 (PAJA) defines what constitutes administrative action and the grounds of review are fully set out.

Thus there is a full constitutional and legislative framework for the exercise of judicial review by the courts. The law of review is codified and accessible. There is no need for judicial activism to infer any review jurisdiction. The Supreme Court in Israel did not have the benefit of this statutory framework, nor has it the benefit of a bill of rights to derive remedies for the protection of basic freedoms and justice. While some may criticise its far reaching activism there are only two ways to remedy this. One is through the proposed judicial reforms and the other is by way of a full process of constitutional deliberation involving all stakeholders in an orderly and disciplined manner. This is the CODESA option.

In evaluating the reform proposals as an option, the formulation of the powers of the courts go beyond politics of the day. They intrude into the constitutional realm of separation of powers, judicial independence and the rule of law. The stated goals of the reforms and the actual consequences are far apart. They lead to a status ante quo to the1950’s which ignores the changes in governance and society in Israel. Specifically the abolition of English common law in 1980 which undermined the English doctrine of inherent jurisdiction of the High Court, and the Basic Laws of the1990’s creating a rudimentary human rights framework. Thus the present judicial review system is a delicate equilibrium born of necessity to fill the huge constitutional gaps in Israel. In essence the Israel Supreme Court does no more than compensate for what the courts are empowered to do in South Africa under its constitutional legal order. The judicial interpretation of a quasi constitution is not a sinister left wing conspiracy but in harmony with contemporary jurisprudence on constitutional purposive statutory interpretation.

Mr Zohar, a reform politician was reported on 30 April as saying:

– “The reforms are not intended to harm anything but only to do good for the State of Israel.”

– “It must happen, the right wing public was promised a reform and that’s what they want.”

– “If we do not promote the reform we will have lost our public, and if we continue without agreements, we will lose (sic) the other side who will continue the protest”.

– “We will promote the reform unilaterally if we do not reach agreements”’

A tour de force of paternalistic authoritarian ideology. It reflects the worst of motives ie we know best, the will of the voters is paramount, this is a win/lose political contest and worst of all, a resort to ignoring the social contract in driving the legislation through Knesset by a simple majority. We have seen it all before in 20th century history and it ended badly.

Happy 75th birthday Israel. We deserve a better present.


About the Author
Born in Pretoria Lawrence Nowosenetz obtained his BA at University of the Witwatersrand and LLB at the University of South Africa. He has been admitted as an Attorney in South Africa and as an advocate in South Africa. He practiced at the Pretoria and Johannesburg Bar and worked as a human rights and labour lawyer at the Legal Resources Centre a public interest law firm. Lawrence was Awarded a Fulbright Scholarship and completed professional internship in the USA. He was a a labour arbitrator and mediator, part time Senior Commissioner at the Commission for Conciliation Mediation and Arbitration (CCMA) as well as a panelist at Tokiso Dispute Settlement. He was a member of the South African Jewish Board of Deputies and Pretoria Chairman. He has also served as an Acting Judge of the Hight Court, South Africa. He now lives in Tel Aviv.
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