Interview with Irwin Cotler | The Canadian Connection to the Israeli Crisis

It’s 11 p.m. in Jerusalem when Irwin Cotler calls me. The ex-Minister of Justice and ex-professor of law at McGill does not “follow” the political crisis in Israel. He is a stakeholder.

“Right now, as I speak to you, there are 150,000 people on the streets of Tel Aviv demonstrating against the Netanyahu government’s reforms for the 11^e week in a row. »

The human rights lawyer alone embodies what might be called the “Canadian connection” of this crisis. Because Israel was inspired by the Canadian experience to create its charter of rights… and the current government gives Canada as an example to back down and prove that political appointments and a provision of derogation (“notwithstanding clause”) can very well exist in a democratic country.

“When I was a visiting professor in Israel in 1991, I took part in several discussions, in particular with the Israeli Minister of Justice at the time, on the creation of a charter of rights and freedoms, somewhat on the model of the Canadian charter. I was one of those who thought that Israel should have it,” he said.

This idea became the Basic Law on Human Dignity and Liberty, adopted in 1992 by the Israeli Parliament. Technically, it is not a “constitutional” charter, as Israel does not have a formal constitution. But it serves as a charter and has been used by the Israeli Supreme Court to invalidate articles of law or government actions (22 times in 470 attempts over 20 years).

However, it is precisely this “fundamental law”, or rather its interpretation, which has created the anger of religious or ultranationalist parties – by forcing Orthodox Jews to conscription like other citizens, by limiting certain actions in the colonies, by authorizing the dismantling of certain settlements, etc.

It is to limit the action of the Israeli Supreme Court as much as possible that the Netanyahu government is advancing this reform at a rush. Because Netanyahu remains fragile in power thanks to small extremist parties which have denounced this court for years.

“But taken together, the proposed measures will weaken judicial independence and all democratic institutions. There are unprecedented tribal divisions in the country and toxic polarizing political discourse. »

On CNN the other day, Benyamin Netanyahu said that there was nothing to get upset about the notwithstanding clause (which allows a law to be exempt from a judgment of the Supreme Court). After all, Canada has the same thing!

“The first difference is that the Canadian Charter is in the Constitution, not just a law like in Israel. Second, the provision allows you to opt out of some rights, but not all. Also, there is a sunset clause in the Canadian Charter: after five years, a government must vote again to withdraw a law from the charter. Canada has a federal framework, and the federal government has never used it. When I was a minister [2003-2006], I promised never to use it. »

Another element: the reform will oblige the Israeli Supreme Court to sit with its 15 judges to invalidate a law. And 12 of the 15 judges will have to agree to do so – which happens very rarely.

There is more: any law declared “fundamental” by the Israeli Parliament cannot be invalidated. What is a “fundamental law”? What the Parliament will decide to name thus.

The process of appointing judges, which has always been almost apolitical in Israel, will be entirely under the control of the government. Currently, an independent committee of nine people selects the candidates.

Add to that the abolition by this reform of the doctrine of “reasonableness” for judges, also largely inspired by Canadian case law. The Canadian Charter states that rules of law that limit a right are invalid unless it constitutes a “reasonable limit” in a free and democratic society.

And finally, the legal advisers of the Israeli ministries, hitherto independent and with the power to prevent certain acts, will henceforth be political employees.

Irwin Cotler is himself taken to task in this affair: he was Minister of Justice and appointed the judges to the various courts without formal constraint. Legal advisers in departments do not have as much independent power in Canada. As for the Charter, incorporated into the Constitution in 1982, it was never “signed” by Quebec.

In short, what to answer to the arguments according to which Israel does nothing but imitate the other democracies, to bring things “up to standard”?

The question is regularly asked of him in the Israeli media.

He replies that first of all, we don’t make such changes so quickly and without discussion. The government wants it voted on before Passover (Passover), which begins on April 5.

Then, the loss of power of the Supreme Court in this project would completely “eviscerate” its power.

With regard to the appointment of judges, we must move towards an increasingly “inclusive” and transparent process, not retreat towards political arbitrariness. A selection committee now exists in Canada for the Supreme Court. Even if it is far from being as rigid as the current Israeli system, the fact remains that in the end, the Canadian Supreme Court does not experience the extreme polarization of that of the United States, it is it takes a lot.

The coming days will be tense in the extreme.

“If it ever passes, what will the Supreme Court do? asks the lawyer. “Will she invalidate the reform? Will the government respect this judgment? It really could be a total constitutional crisis. Unless there is an attempt at compromise,” he said in a tone of concern.

“The most ironic thing is that the Israeli Supreme Court could have benefited from a tightening of its jurisdiction; it does not choose its causes (as in Canada or the United States), and it is overwhelmed with thousands of pending cases! »

This crisis is obviously much more than a legal matter: it is the very nature of the country that is in question. With obvious security implications. The Arab minority and the Palestinians risk having their rights further trampled on. President Herzog speaks bluntly of the risks of “civil war”. The economic environment is also alarmist – companies, including the famous start-upthreaten to leave.

But nothing indicates that Netanyahu will back down.