Statement by Canadian jurists on proposed transformation of Israel's legal system
The undersigned are Canadian law professors and jurists. We write out of concern that recent proposals to transform Israel’s legal system will weaken democratic governance, undermine the rule of law, jeopardize the independence of the judiciary, impair the protection of human rights, and diminish the international respect currently accorded to Israeli legal institutions.
In the aftermath of the Holocaust and the other atrocities of the Second World War, the great project of legal reform throughout the world has been the establishment of systems of rights that protect human dignity. These systems exemplify the definitive legal repudiation of those (and similar) horrific events. Canadian and Israeli jurists have been partners in this project at the judicial, professional, and academic levels for decades. The transformation sponsored by the Israeli government would constitute a retrograde step that endangers the legal structure for protecting human dignity in Israel.
The lesson of the twentieth century in Europe and elsewhere is that democracy is more than electoral choice at periodic intervals. Democracy also presupposes a set of enduring legal norms and institutional arrangements that enshrine the rule of law, protect fundamental rights, and safeguard the freedom and dignity of all who are subject to official power. Strong and independent courts are integral to the democratic functioning of modern diverse societies.
The proposed changes undermine these norms and their institutional frameworks. They undercut the independence of the judiciary by (i) giving the executive effective control over the process of appointing judges, (ii) severely restricting the power of the Supreme Court to determine the constitutionality of statutes, and (iii) empowering the governing coalition to override the invalidation of laws that infringe rights. They also weaken the rule of law by putting the hitherto independent legal advisor of each ministry under the control of its minister and by authorizing ministers to disregard their advisors’ legal advice. Moreover, they abridge the protection against arbitrary administrative action by limiting the norm against unreasonable decision-making by public authorities.
Particularly at risk is the functioning of the Basic Law: Human Dignity and Liberty, the crown jewel of Israeli law. This Basic Law protects rights to dignity, property, privacy, life and bodily integrity, personal liberty, and freedom of movement to and from Israel. It also forms the jurisprudential basis for the right to equality, to self-expression, to marriage and parenthood, to freedom of conscience, to freedom regarding religion, to education, to healthcare, and to a dignified human existence. The government’s proposals portend a future for Israel in which these rights lack effective judicial protection.
Given the exceptional concentration of political power in the Israeli system, any one of the government’s proposals would be disturbing. Taken together they render government decisions effectively unassailable, regardless of their content.
Anyone subject to or affected by Israeli law would be exposed to the danger of abusive exercises of power by a government no longer accountable for violations of the most basic legal rights and principles. Israeli society would be deprived of the benefits of a reasoned and transparent judicial process that adjudicates in specific circumstances and upon established facts. Israel’s international standing would be diminished by the perception that its Supreme Court had become the creature and extension of partisan politics.
Proponents of these changes point to Canada and other democracies to argue that the proposed changes are commonplace. This argument is disingenuous.
Israel’s system of government differs from that of other democracies, like Canada’s, in its exceptional concentration of political power. Other democracies have a suite of mechanisms that distribute or moderate the exercise of political power. Examples of these mechanisms are: (1) a formalized constitution that the regular legislative process cannot change; (2) a comprehensive bill of rights that protects the dignity, liberty and equality of all by judicially enforcing a wide range of political, legal, social, and human rights; (3) the possibility of recourse to a transnational court of human rights to review government action; (4) an electoral process based on geographic constituencies, thereby inducing political parties to appeal to citizens generally rather than merely to the identity or beliefs of their core supporters; (5) bicameral legislatures that allow an upper house to deliberate upon the legislative proposals emanating from the elected representatives of the lower house; (6) a federal structure that divides power between local and national levels of government. These mechanisms disperse or limit political power and provide safeguards against its intemperate exercise.
In contrast, in Israel the prime minister and his coalition partners in the cabinet wield concentrated political power through their control of the legislature. The only constraint on the exercise of political power is the Supreme Court’s role in upholding the rule of law, interpreting the Basic Laws, and applying the fundamental concepts of legal ordering. In adjudicating the extraordinarily difficult controversies that have come before it, the Supreme Court of Israel has established itself as one of the world’s most respected judicial institutions.
Any legal system, including Israel’s, can be improved. But if reform is to be legitimate, it cannot take the form of the partisan and hurried enactment of massive institutional changes that endanger human rights, undermine judicial independence, and compromise the rule of law.
Authors of the statement
Lorraine E Weinrib, Professor Emerita, Faculty of Law, University of Toronto | Ernest J Weinrib, University Professor Emeritus, Faculty of Law, University of Toronto |
We welcome additional signatures from Canadian jurists, law professors, and members of the bar. To add your signature, click here.
Signatories as of February 8, 2023
The Right Honourable Beverley McLachlin, Retired Chief Justice of the Supreme Court of Canada
The Honourable Frank Iacobucci, Retired Justice of the Supreme Court of Canada
The Honourable Louis Lebel, Retired Justice of the Supreme Court of Canada
The Honourable Marie Deschamps, Retired Justice of the Supreme Court of Canada
The Honourable Morris J. Fish, Retired Justice of the Supreme Court of Canada
The Honourable Rosalie Silberman Abella, Retired Justice of the Supreme Court of Canada
The Honourable Marshall Rothstein, Retired Justice of the Supreme Court of Canada
The Honourable George Strathy, Retired Chief Justice of Ontario
The Honourable J. Michael MacDonald, Retired Chief Justice of Nova Scotia
The Honourable Robert Sharpe, Retired Justice of the Court of Appeal for Ontario
The Honourable Eleanore Cronk, Retired Justice of the Court of Appeal for Ontario
The Honourable Dennis O’Connor, Retired Justice of the Court of Appeal for Ontario
Harry Arthurs, President Emeritus and former Dean of Law, York University
Andrew Petter, President Emeritus of Simon Fraser University, former Dean of Law at the University of Victoria, former Attorney-General of British Columbia
J. Robert S. Prichard, President Emeritus and former Dean of Law, University of Toronto
Jutta Brunnée, University Professor and Dean of Law, University of Toronto
Martin Friedland, University Professor Emeritus and former Dean of Law, University of Toronto
Arthur Ripstein, University Professor of Law and Philosophy, University of Toronto
Michael J. Trebilcock, University Professor Emeritus of Law, University of Toronto
Lisa Austin, Professor of Law, University of Toronto
Andrew Botterell, Professor of Law, Western University
Alan Brudner, Professor Emeritus of Law, University of Toronto
Bruce Chapman, Professor Emeritus of Law, University of Toronto
François Crépeau, Professor of Law and former Director, Centre for Human Rights and Legal Pluralism, McGill University
Bernard Dickens, Professor Emeritus of Law, University of Toronto
Adam Dodek, Professor and former Dean of Law, University of Ottawa
Abraham Drassinower, Professor of Law, University of Toronto
Bruce Elman, Professor Emeritus and former Dean of Law, University of Windsor
Christopher Essert, Associate Professor of Law, University of Toronto
Mohammad Fadel, Professor of Law, University of Toronto
Evan Fox-Decent, Professor of Law, McGill University
Michael Geist, Professor of Law, University of Ottawa
Fabien Gélinas, Professor of Law, McGill University
Benjamin Geva, Professor of Law, York University
Richard Gold, Professor of Law, McGill University
Gillian Hadfield, Professor of Law, University of Toronto
Allan C. Hutchinson, Professor of Law, York University
Edward Iacobucci, Professor and Former Dean of Law, University of Toronto
Richard Janda, Associate Professor of Law, McGill University
Ariel Katz, Associate Professor of Law, University of Toronto
Larissa Katz, Professor of Law, University of Toronto
Rande Kostal, Professor of Law, Western University
Brian Langille, Professor of Law, University of Toronto
Ron Levi, Distinguished Professor of Global Justice, University of Toronto
Avner Levin, Professor of Law, Toronto Metropolitan University
Jeffrey G. MacIntosh, Professor of Law, University of Toronto
John D. McCamus, Professor and former Dean of Law, York University
Audrey Macklin, Professor of Law, University of Toronto
Joseph E. Magnet, Professor of Law, University of Ottawa
Kathleen E. Mahoney, Professor Emerita, Faculty of Law, University of Calgary
Maureen Maloney, Professor of Public Policy at Simon Fraser University, former Dean of Law at University of British Columbia, and former Deputy Attorney-General of British Columbia
Richard Moon, Professor of Law, University of Windsor
Mayo Moran, Professor and former Dean of Law, University of Toronto
Joshua Nicholls, Assistant Professor of Law, McGill University
Johanne Poirier, Professor of Law, McGill University
Darren Rosenblum, Professor of Law, McGill University
Zoe Sinel, Associate Professor of Law, Western University
Anna Su, Associate Professor of Law, University of Toronto
Malcolm Thorburn, Professor of Law, University of Toronto
Mark Walters, Professor and Dean of Law, Queen’s University
Jeremy Webber, Professor and former Dean of Law, University of Victoria
Arnold S. Weinrib, Associate Professor Emeritus of Law, University of Toronto
Jacob Weinrib, Associate Professor of Law, Queen’s University
We welcome additional signatures from Canadian jurists, law professors, and members of the bar. To add your signature, click here.
Signatures received after February 8, 2023
Alexandra Flynn, Associate Professor of Law, University of British Columbia
Erez Aloni, Associate Professor of Law, University of British Columbia
René Provost, Professor of Law, McGill University
Ayelet Shachar, Professor of Law, University of Toronto
Jean-François Gaudreault-DesBiens, Professor of Law, Université de Montréal
Eran S. Kaplinsky, Professor of Law, University of Alberta
Colleen Sheppard, Professor/professeure, Faculty of Law, McGill University
Hamish Stewart, Professor of Law, University of Toronto
Jesse Isaac Gutman, Lawyer, Law Union of Ontario
Philip Siller, Barrister & Solicitor (retired), BroadRiver Asset Management LP
Ronald J. Daniels, President, Johns Hopkins University and former Dean of the Faculty of Law, University of Toronto
David Lepofsky, Visiting Professor, Osgoode Hall Law School, York University
Dr. Miriam Zucker, Visiting research fellow and adjunct professor , Osgoode Hall Law School
Alana Klein, Associate Professor, Faculty of Law, McGill University
Michael Mitchell, Vice-Chair, Ontario Labour Relations Board, Arbitrator, C Michael Mitchell Dispute Resolution
Noemi Gal-Or, Prof. Emerita (Ph.D., LL.B), Retired; Member of Board of Governors, International Association of Jewish Lawyers and Jurists (IJL)
Cristie Ford, Professor, Allard School of Law, University of British Columbia
Joseph Steiner, Partner (Retired), Osler, Hoskin & Harcourt LLP
Toby Susan Goldbach, Assistant Professor, Allard School of Law, University of British Columbia
Stephen Pincus, Partner, GOODMANS LLP
Sandra Bernstein, of the Bar of Ontario, (Retired)
Ron Richler, Retired lawyer
Anna Flisfeder, Lawyer, Ontario Bar
Eva Frank, Retired Judge, Superior Court of Ontario
Brian Schnurr, Retired lawyer
Maurice A Green, Past Vice-Chair, Ontario Labour Relations Board, Past Member, Ontario Human Rights Tribunal
Clifford Lax KC LSM, Arbitrator/ Mediator, Law Society of Ontario
Mariam Leitman, Retired lawyer, Office of Legislative Counsel, Ontario
Lewis Gottheil, Lawyer, Law office of Lewis Gottheil
The Honourable Craig Perkins, retired judge, Superior Court of Justice, Ontario
Richard Devlin, Professor of Law, Dalhousie University
Larry P Lowenstein, Retired Partner, Osler, Hoskin & Harcourt LLP
Julie Lowenstein, Lawyer, Torys LLP
Michael Schelew, Retired lawyer, Law Society of Ontario
Edward Waitzer, Professor Emeritus, Osgoode Hall Law School, Schulich School of Business York University
Paula Schipper, Lawyer, Ontario Bar
Lionel Schipper, Retired Lawyer, Ontario Bar
Rob Kwinter, Law Firm Partner, signing in personal capacity
Marshall Torgov, Lawyer, Bennett Jones LLP
Samuel David Cohen, Former Dean of Law, University of Victoria
Alexander S. Burton, Crown Counsel, Ministry of Attorney General
Allan Kaplan, Ontario lawyer, Kaplan & Associates
Clifford Nelson, Retired Judge, Superior Court of Justice- Ontario Canada
Hilary Evans Cameron, Assistant Professor, Lincoln Alexander School of Law, Toronto Metropolitan University
Stephen Toope, international lawyer and President Emeritus of University of British Columbia
Vananessa MacDonnell, Professor of Law, University of Ottawa
Caroline Mandell, Lawyer, Ontario Bar
Corey Shefman, Lawyer, Olthuis, Kleer, Townshend LLP
Mark Friedman, Lawyer, Ontario Bar
Nancy Goodman, retired lawyer, Ontario bar
Daniel Henry, Lawyer, danieljhenry.com
Jeffrey Leon, LSM, CIArb, Partner, Bennett Jones LLP
The Honourable Barry Leon, Independent Arbitrator and Mediator, Arbitration Place | 33 Bedford Row Chambers | Caribbean Arbitrators
Joel Richler, Retired lawyer, Blake, Cassels & Graydon, retired
The Honourable Ian Binnie, Former judge of the Supreme Court of Canada, Arbitration Place Toronto
Joshua Karton, Associate Professor, Queen's University Faculty of Law
Trudo Lemmens, Professor, Faculty of Law, University of Toronto
Sheila Block, Lawyer, Torys LLP
Earl A Cherniak KC, partner, Law Society of Ontario
Margaret Ross, Retired Lawyer, Gowlings WLG
Joan Haberman, Retired Case Management Master, Superior Court, Ontario Court
Yves Fortier, international mediator, arbitrator, Cabinet Yves Fortier
Harry LaForme, Retired Justice Court of Appeal for Ontario
Morley Torgov, Retired, Ontario Bar
Carolyn Kobernick, Lawyer,, Tribunal member, PMPRB
Madeleine Sarick, lawyer, Ontario Bar
Howard Knopf, Retired Lawyer, Ontario Bar
Brian Pukier, Partner, Stikeman Elliott LLP
Patricia D S Jackson LSM, Retired Partner Torys LLP, Arbitration Place
The Honourable Jack M. Grossman, Retired Justice, Ontario Court of Justice
Bernard Gropper, Lawyer, Gropper Law
Myra Tawfik, Don Rodzik Family Chair in Law and Entrepreneurship, Distinguished University Professor, University of Windsor
Jeffrey Berryman, Distinguished University Professor of Law, former Dean University of Windsor
Lewis Klar, former Dean, Faculty of Law, University of Alberta
Moe Litman, Professor Emeritus of Law, University of Alberta
Irwin Cotler, Professor Emeritus, McGill University and Chair of the Raoul Wallenberg Centre for Human Rights, Former Minister of Justice of Canada
Mary Gold, Professor Emerita, Faculty of Law, University of Windsor
Neil Gold, Professor Emeritus, Faculty of Law, University of Windsor
Jeff Beedell, Lawyer, Ontario Bar
Bonnie J Wein, Retired, Superior Court of Justice of Ontario
The Honourable S Casey Hill, Retired, Superior Court of Justice of Ontario
Karen Shiller, Retired lawyer
Andrea Sepinwall, Senior Legal Counsel, Simplex Legal LLP
Allan Rock, Former Minister of Justice and Attorney General of Canada, University of Ottawa
David A. Wright, Former Associate Chair, Human Rights Tribunal of Ontario
Paul Torrie, Lawyer, Mediator, Global Resolutions
Jory Birbrager, Lawyer, Ontario Bar
Alf Kwinter, Lawyer , Singer Kwinter
Kenneth Glasner, Q.C., FCIArb., Legal Counsel, Arbitrator, and Mediator, Kenneth Glasner Q.C. Law Corp.
Jon Khan, Ph.D. Candidate & Lawyer, Osgoode Hall Law School
Ray Schachter, Associate Counsel, Synergy Business Lawyers
Shari Novick, Arbitrator / Mediator, Alternative Resolution Group
Anil Kapoor, Lawyer, Kapoor Barristers
Jonathan L. Richler, Lawyer, of the Bar of Ontario, Richler Tax Law
Robert Leckey, Ad. E., Samuel Gale Professor of Law, McGill University
R. Michael Birnbaum, retired lawyer
Dr. Barbara Landau, Co-Founder, J-Link Coordinating Committee, former Board member, JSpaceCanada, and Co-Chair, Canadian Association of Jews and Muslims
Roslyn Levine KC, Lawyer, former Senior General Counsel, Department of Justice
David Cole, Retired Justice, Ontario Court of Justice
Nathan Lindenberg, Lawyer, Lindenberg and Lindenberg
Daniel Jutras, professor of law, Université de Montréal
Colin Macleod, Professor of Law, University of Victoria
Adam Singer, Partner, Wilson Laycraft
Karen Golden, Lawyer, Ministry of the Attorney General (Ontario)
Judith A. Howard, Retired Lawyer, Law Society of Ontario
Linda Bohnen, Retired lawyer, Law Society of Ontario
Dyanoosh Youssefi, Lawyer, Legal Studies Professor, Humber College
Rebecca Johnson, Professor of Law, University of Victoria
Jeffrey Smith K.C., Practising lawyer in Calgary, Alberta, Wilson Laycraft
Joseph R. Nuss, Retired Justice, Quebec Court of Appeal of Appeal; Senior Counsel, Woods LLP
Rosalyn Train, Retired lawyer, Ontario Ministry of the Attorney General
Daniel Frank, Corporate Counsel, Klue Labs Inc., Lawyer, Law Society of Ontario
Elizabeth Susan Ennis, retired lawyer
Harvey Savage, retired lawyer, self employed
Aubie J. Herscovitch, Lawyer, Quebec Bar, De Grandpre Chait LLP
W.A. Bogart, University Professor and Professor of Law (retired), University of Windsor
Stephen Acker, Retired lawyer, Ontario Bar
Simon Chester, Lawyer, Law Society of Ontario
Benjamin Rubin, Member, Law Society of Ontario, eBenBrandeis.com
Alec Farquhar, Retired lawyer, Ontario
Norman Bennett, Retired justice, Ontario Court of Justice
David Lampert, Retired lawyer, Law Society of Ontario
Kathleen Howes, lawyer, Small Claims Court
Frederika Rotter, Adjudicator, Law Society of Ontario Tribunal, Law Society of Ontario
Barbara Jackman, Lawyer, Jackman & Associates
Razmeen Joya, Lawyer, Jackman & Associates
Hadayt Nazami, Lawyer, Nazami & Associates
Arne Peltz, Arbitrator & Mediator, Arne Peltz Law Corp.
Joshua Eisen, Immigration Lawyer, Member of Ontario Bar, Lewis and Associates
James Gildiner, lawyer, Law Society of Ontario
Malcolm Mercer, Chair, Law Society Tribunal
Ari Y. Sorek, Partner, Dentons Canada LLP
Nancy Flatters, Retired Judge, Provincial Court of Alberta
Andrew Oppenheim, Retired lawyer, Alberta, andrew oppenheim
Alan Belaiche, Principal, Belaiche Law
Mary Truemner, Lawyer
Lisa Wilder, Lawyer, Ministry of the Attorney General (Ontario)
Arlene Mayers, Lawyer (retired), Law Society of Ontario
We welcome additional signatures from Canadian jurists, law professors, and members of the bar. To add your signature, click here.
To download or print the statement, you can view it on Google docs, here.
