A cautionary  tale from the South African experience

By former acting Judge, Lawrence Nowosenetz

Is it such a big deal that Knesset can overrule the Israel Supreme Court? That is the plan, it seems, of the new Likud government. The motives are cloaked under the mantle of judicial reform, but this may be a thinly veiled pretext for bringing to heel a judiciary which is an obstacle to the political machinations of the government of the day to protect or give immunity to elected politicians who actually have already crossed the line of the criminal law such as the new Vice Prime Minister and Minister of Health Aryeh  Deri a convicted fraudster  or newly elected Prime Minister Netanyahu who is  currently facing criminal  prosecution.  It remains to be seen whether by the time this is published, the unthinkable  has already have been done.

While some on the Israeli street may think this is not a big deal – indignantly claiming on social media that the legislature reflects the will of the voters and why should unelected judges undermine Knesset  laws – the answer lies of course elsewhere –  in the doctrine of democracy that is not simply based on rule by an elected majority. It is far more complex than simply crass majoritarianism!

Democracy is far more.

It has evolved into a system of checks and balances. This is the idea  which forms the separation of powers of a Government consisting of three elements – the legislature, executive and judiciary. Each has limits and no single part is all powerful or sovereign. This is the model of modern constitutional democracy. Parliament may not exceed its authority. It is bound by the founding laws and values of the State and universal human rights (natural law) . These norms are found in the constitution of the state but are not necessarily written. The US, and many Western states have written constitutions which empower the courts to pronounce on the validity of legislation. A notable exception is England which has an unwritten constitution developed over centuries. Although its parliament is sovereign, it was historically set on course  by the Magna Carta of 1215, which acknowledged the now firmly embedded concept that no man – not even the king – is above the law.

This evolved over time into the idea of the  rule of law.  England presents a unique example of a constitutional democracy with parliamentary sovereignty which is not abused. Israel has no formal constitution but its founding document – the Declaration of Independence – and the body of basic laws are its constitutional values and norms. This is a grey area which is  in danger of being misused. There is no Bill of Rights which gives courts testing powers over legislative excesses or human rights abuses. The courts should be the guardians of the rule of law and should be independent  of political interference. 

The depravity of parliamentary sovereignty is illustrated by the constitutional crisis which occurred during  the 1950’s in what was then the Union of South Africa. In 1910 the Union of South Africa was formed by the fusion of four provinces, the Cape and Natal being former English colonies with the Orange Free State and the Transvaal being former Boer republics. The Cape Colony was the only province in which a group of non-White people of mixed ancestry called  Coloured  had the franchise. The South Africa Act of 1910, being the constitution, contained a clause guaranteeing  the Coloured right to vote in parliament. This provision was called an entrenched clause. It could only be changed by a 2/3 vote of both houses of Parliament  (a bicameral body consisting of the House of Assembly and the Senate) sitting in a joint session. The National Party, the Apartheid government of the day, viewed the Coloured vote as an obstacle to White rule and pushed through legislation called the Separate Representation of Voters Act which sought to remove Coloured voters in the Cape from the common voter’s role and provide a separate mechanism for the election of four representatives on a separate voters roll. The new law  did not however command a 2/3 majority in a joint sitting of  both houses.  Mr  Harris and a group of aggrieved Coloured voters in the Cape  challenged the validity of this law in court as Parliament had violated its own procedures. The Appellate Division, then the highest court, struck down the overriding legislation as illegal, being not in compliance with the constitution. The government  was most dissatisfied with this decision and then passed the High Court of Parliament  Act to constitute Parliament as a court and with the power to override the courts of law and of course the adverse judicial decision in the Harris case. However, Harris again approached the courts to remedy the  High Court of Parliament law. The Appellate Division again struck out the legislation as a sham as Parliament is not at all a court of law and has no judicial powers. A constitutional deadlock was reached. 

This stalemate was  overcome by the National Party government  enlarging the Senate with government supporters and also enlarging the Appellate Division with the appointment too, of government supporting judges. The whole sorry saga resulted in the Coloured people being disenfranchised until 1994 when South Africa enacted its democratic interim constitution. The franchise was restored to all South Africans.   

This constitutional gerrymandering  shows the moral depravity of a government armed with untrammelled parliamentary sovereignty, determined to use its powers to maintain power and trample on civil liberties. This approach was already implanted in South Africa by Paul Kruger, prior to the era of union when he  was president of the Boer Republic of the Transvaal. He took a dim view of judicial review, considering it the  work of the Devil introduced to challenge God’s law.  Such an absolutist view harks back to the divine right of kings. This worldview had already been discredited during the Age of Enlightenment in Europe centuries earlier.  

Democracy has been called a fragile flower. It is easily crushed, particularly by those whose intentions are less than honourable. There has always been a tension between the executive and the judiciary. A delicate balance needs to be maintained. Laws are of general application in most cases whereas a court decision is specific to the parties before it. When legislation is used to favour  an individual, such as a politician, it ceases to be legitimate and is an abuse of power.  In the Harris case, the parliamentary process was used to overturn an unfavourable court judgment. This is a red line which should be guarded against.

Israel is at the tipping point between a constitutional democracy and an unconstitutional pseudo democracy.

About the writer:

Lawrence Nowosenetz is a retired South African advocate at the Johannesburg Bar specialising in labour law; a former senior Commissioner of the CCMA (Commission for Conciliation, Mediation and Arbitration) and  served as an Acting High Court Judge in Gauteng. He has served as Chairman of the Pretoria SA Jewish Board of Deputies and in 2019, he immigrated to Israel where he lives with his wife in Tel Aviv. He retains an interest in international law.

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