The Israeli Law Professors' Forum for Democracy is a voluntary, non-affiliated and independent group of about 140 permanent faculty members in the law faculties of academic institutions in Israel. The Forum was founded in 2023, in response to the 2023 Israeli judicial reform. The Forum opposes this plan, and advocates the maintenance of a robust separation of powers with sustainable checks and balances.
The Forum actively opposes initiatives and actions aimed at abolishing the independence of the judiciary and subordinating it to the government and to partisan political considerations of the executive branch, as well as initiatives aimed at limiting democratic institutions, equal and free elections, the right to equality, freedom of speech, freedom of religion, and other human rights.
The main activity of the forum is authoring and publishing professional legal opinions, based on extensive legal research. By the summer 2023, the Forum had published over 50 position papers on various issues, such as the unreasonableness amendment, judicial independence, judicial appointments, and more. Extracts of the papers are published in Arabic, English, French, and Russian.
The Forum is assisted by "Basha'ar", an organization of senior Israeli academics, for administrative and financial support, while maintaining full independence.
Composition The Forum grew out of a discussion group established by several law professors (among them Professor Ittai Bar-Siman-Tov and Professor Eliav Lieblich) in 2019, in response to legislative initiatives related to enacting a constitutional override clause in Israel. The joint activity of the members of the Forum expanded and became partially institutionalized in view of the legal reform presented by the coalition in the 25th Knesset at the beginning of 2023.
The Forum comprises about 140 law professors and lecturers who are permanent faculty members in all law faculties in Israel, including most of constitutional law and administrative law experts in Israel. The Forum was founded and is led by Dr. Ronit Levine-Schnur from Reichman University.
Members of the Forum include, among others, Prof. Yaniv Roznai and Prof. Adam Shinar (Reichman University), Prof. Margit Cohn, Prof. Eyal Benvenisti, Prof. David Kretzmer, Prof. Guy Davidov and Prof. Barak Medina (Hebrew University); Prof. Menachem Mautner, Prof. Ronen Avraham, Prof. Yishai Blank, Dr. Ofra Bloch, Prof. Dafna Hacker, Prof. Aeyal Gross, Dr. Doreen Lustig and Dr. Yofi Tirosh (Tel Aviv University); Dr. Meital Pinto (Zefat Academic College and the Ono Academic College), Dr. Ori Aronson, Prof. Ittai Bar-Siman-Tov and Dr. Manal Totri-Jubran (Bar-Ilan University); Prof. Tamar Hostovsky Brands, Prof. Zvi Kahana and Prof. Dana Pugach (Ono Academic College); Prof. Amnon Reichman and Dr. Yair Sagy (Haifa University);JNS, University of Haifa scholar: Israeli judicial reforms may present ‘clash’ with American Jews, 28 February 2023 Prof. Yiffat Bitton (Ahva Academic College), Dr. Nurit Zimmerman (Sapir Academic College), and Prof. Gila Stopler (Academic Center for Law and Business).
The Forum considers the legislative initiatives proposed by the coalition to be an unprecedented and serious attack on the independence of the judiciary, state legal advisors, the police, the military, public broadcasting, and the academia - intended to seriously curve the rule of law and the democratic nature of the State of Israel. The Forum holds that the weakening of the checks and balances mechanisms in Israel will enable the current governing coalition to entrench its power for many years to come, possibly rendering irreversible the changes currently promoted.Debra Shushan, Shushan Street: Meet the Israeli Organization Behind the Legislation to Subvert Israeli Democracy, and the American Billionaires that Fund It, 25 January 2023.
Forum positions
Levin reform
The Forum argues that the aggregated changes proposed by Israel's thirty-seventh government suffocate the independence of the judiciary, dissolve the separation of powers among the branches of governments, and undermine the rule of law. The Forum emphasizes that there is not a single democratic country in the world where a combination of all the proposed constitutional arrangements exists.The Revolutionary Regime Transformation: Summary Opinion #5, 15 March 2023.Maayan Jaffe-Hoffman, Is judicial reform dangerous for Israeli democracy?, Jerusalem Post, 10 February 2023.
Mechanism for selecting judges The Forum strongly opposes the proposal that the coalition alone will be able to appoint judges, on the grounds that judges appointed by the government alone will have difficulty fulfilling its role in the democratic regime as a control mechanism of the actions of the executive branch. The Forum is similarly opposed to the selection of judges by the votes of politicians only. The Forum points to numerous empirical and comparative studies that indicate a correlation between a greater involvement of political actors and lesser involvement of professional representatives in the process of selecting judges on the one hand, and political influence on the judgments on the other hand.The Forum’s Updated Position on the Selection of Judges and Judicial Review, 26 March 2023.
Diversity of court system One argument that the proponents of the Levin The Forum points out that in recent decades, under the existing system, the committee for the selection of judges has successfully appointed judges from different groups within the Israeli population. The Forum supports increasing diversity in the judicial system, but claims that the coalition's proposal will lead to the appointment of ideologically biased judges, chosen only because of their political loyalty.Diversity in the Judiciary: Summary of Position Paper #14, 12 April 2023.
Status of Attorney General and legal advisors The Forum maintains that the coalition's proposal, according to which the legal opinion of the Attorney General or of ministerial legal advisors will not bind the political echelon, will allow the political echelon to carry out illegal acts without any internal review. According to the Forum this will expose government ministries to pressure by interest groups whose influence will not be blocked by the professional gate-keepers, thus weakening the public's trust in the system which is now non-partisan and professional.Changes to Attorney General and Government Legal Advisors Status: Summary of Position Paper #1, 28 March 2023.
Abolition of reasonableness as grounds for judicial review The Forum vehemently opposed the 24 July 2023 legislation amending Basic Law: Judiciary, which denies the courts the power to consider and/or pass judgment on the reasonableness of any decision of the Cabinet, the prime minister, or any government minister. The Forum opined that "[t]he unreasonableness amendment is only the first step towards executive authoritarianism, stripping an entire body of case-law that served as a primary constraint on executive arbitrariness, illegality, and corruption". The Forum also addresses the government's policy towards Palestinians in the occupied West Bank, warning that the amendment could even further weaken "the highly limited legal protections they have enjoyed until now.."
According to the Forum, legislation to develop Israeli administrative law (which is currently judge-made) should consist of norms that apply to the administration rather than those that limits of the courts' authority. Such legislation should be adopted without regard to the narrow interests of any specific government. Therefore, the applicability of such a law should either be postponed until the term of office of the next Knesset, or the law should be enacted by an especially large majority.Summary of Position Paper No 50: The proposal to revoke the standard of reasonableness, 10 July 2023.
Comparative analysis of constitutional arrangements
The Forum opposes the coalition's approach, which argues that the existence of certain constitutional arrangements aboard justifies their adoption in Israel. The Forum argues that this is done without regard for the full context of the constitutional arrangements in those countries which create a comprehensive structure of checks and balances. Some of the mechanisms that are found abroad but do not exist in Israel are a comprehensive and rigid constitution, a bi-cameral parliament, a presidential system of government, a federal structure, regional elections, or the subordination of national legislation to supra-national courts that protect human rights and basic democratic principles. The Forum argues that selective borrowing of arrangements that strengthen the government's power in foreign countries without the mechanisms that balance them will create a flawed legal structure in Israel. Such structure will place it alongside countries that have experienced acute democratic backsliding in recent years, such as Turkey, Hungary and Poland. Some of the forum positions are based on the opinions of experts from the countries whose constitutional arrangements the coalition purports to import to Israel, including Great BritainSenior British Experts’ Response Concerning the Comparison of Israel & UK: Position Paper #13, 19 February updated 16 March 2023. and Switzerland.
The Forum refuted the coalition's claim that there is no judicial review of laws in New Zealand by pointing to the powers of the courts there to strike down laws.Judicial Review of Legislation in New Zealand: Summary of Position Paper #12, 19 February 2023. It also pointed out that, contrary to what is claimed by coalition supporters, Ireland,Comparison of reforms of judicial appointments in Ireland and Israel: Summary of Position Paper #27, 14 March 2023. has adopted a scheme for electing judges that is free from any political affiliation. The Forum has shown that in France elected officials do not control the appointment of the majority of judges. The Forum also noted that in the United States there are actually a variety of election methods, and even when the appointment is made by the president, other factors are involved in the process, factors that act as brakes on the power of the government.מינוי שופטים בארצות הברית - נייר עמדה #38, פורום המרצות והמרצים למשפטים למען הדמוקרטיה, 28 במרץ 2023 Regarding the appointment of presidents of high courts according to the rule of seniority in democratic countries, the Forum points out that in the United States a rule of seniority is enshrined in all regular federal courts, except for the Supreme Court. This is also the case with regard to the appointment of Supreme Court presidents in several US states. The Forum also hold that the rule of seniority is of great importance in appointment procedures in many democratic countries, especially since other methods, including in the United States, the appointment of a Supreme Court president by Politicians is not common.נייר עמדה: מינוי נשיאי בתי משפט גבוהים על-פי כלל הסניוריטי במדינות דמוקרטיות – מחקר השוואתי #47", 5 ביוני 2023.
The Forum states that the proposed measures are completely contrary to the recommendations of the Venice Commission of the Council of Europe, of which Israel is a member, in at least three aspects: the methods of selecting judges, the procedure for making constitutional changes, and respecting the principles of the rule of law. According to the Forum, if the proposals are passed, Israel's weak checks and balances system will be similar to that of countries such as Poland, Hungary and Turkey. The legal systems of those three countries have been very negatively reviewed in recent years by the Venice Commission.The Government's Regime Transformation Proposal & the Venice Commission: Position Paper #8 4 February 2023, updated 15 March 2023.
Position on possible consequences of the proposed regime changes