REX VAN SCHALKWYK: Lessons for Netanyahu from apartheid-era constitutional wrangles

Like Italy’s Silvio Berlusconi before him, Israeli prime minister Benjamin Netanyahu seeks to make law “because he can”, to overcome the criminal charges against him.

There are two essential ingredients to the proposed law, which involve amendments to the legal order and have brought the crowds onto the streets. The first is a proposal to deprive the Israeli supreme court of the right to review an act of parliament in what is called the “Basic Law”, and the second involves a change in the method of selection of supreme court justices, giving the greater authority to elected politicians.

These are fundamental violations of the rule of law; they violate the principle of the separation of powers and, more fundamentally, they have the effect of usurping the authority of the court.

The Israeli population being so well-informed, it was not necessary to resort to the courts to undo this authoritarianism; the population did it for themselves. They could see through the ruse: the measures were designed to provide Netanyahu with indemnity against criminal prosecution. Spontaneously and en masse, they took to the streets in a succession of protests in a fine example of democracy in action: they informed Netanyahu that it was they, and not he, whose views were to be heeded. The defence minister has been fired for his opposition to the proposed measures, but for now that process has been checked.

There is an eerie parallel between this episode and the scandalous processes adopted by the National Party government to remove coloured voters from the voters roll in SA. However, in that case the voting minority did not take to the streets, and it was left to the courts to right the wrongs that had been wrought.

The act of union of 1910, whereby the Union of SA was created out of the two former Boer republics and the colonies of the Cape and Natal, incorporated constitutional guarantees in respect of the coloured voters of the Cape. These included that their existing right to vote on the basis of a qualified franchise on a common voters roll would continue within the union.

When the Nationalists came to power in 1948 they let it be known that it was their intention to deprive coloured voters of their entrenched right to vote. However, they had a problem: their objective could only be lawfully accomplished by means of a two-thirds majority vote of both houses of parliament, in a joint sitting. Such a majority was not within reach.

In their search for a solution it was perceived, among other things, that although the South Africa Act (a law of the British parliament that created the union) contained the entrenched clause, a subsequent act — the Statute of Westminster — gave parliament the power to repeal British law.

This principle of parliamentary sovereignty emboldened the apartheid government to pass, by a simple majority, the Separate Representation of Voters Act, which deprived coloured voters of their existing right and substituted it with the right to elect four whites to act as their parliamentary representatives.

The validity of this act was challenged in the courts, with the Appellate Division of the Supreme Court unanimously upholding the challenge. Not to be outdone, the government, which had publicly resolved not to abide by the court’s judgment, came up with its solution.

This was to create a High Court of Parliament, consisting of sitting parliamentarians with the authority to overturn any judgment of the Appellate Division that had the effect of invalidating an act of parliament. This “High Court” would comprise a majority of National Party members, and its majority decision would be binding.

The validity of the High Court of Parliament Act was challenged before the Appellate Division and was held, once again unanimously, to be invalid: only a court of law had the authority to adjudicate upon the lawfulness of an entrenched section of the constitution, and the “High Court of Parliament” was not a court of law.

Still, the government had not exhausted its resourcefulness. The formula for the election/nomination of senators created an opportunity of a different kind: the government would use this formula to pack the Senate with its supporters to create the required majority. And, just to ensure the outcome, it would use its prerogative in the appointment of judges to the Appellate Division to appoint judges of the right pedigree.

With its contrived two-thirds majority, the government passed the South Africa Act Amendment Act of 1956, which validated the earlier Separate Representation of Voters Act. This process was again challenged before the same court — differently constituted this time — and unsurprisingly, the result on this occasion favoured the government.

However, there was one unexpected outcome; although the novice judges had voted as expected, the others became inconstant. Only judge Oliver Schreiner, to his great credit, saw the entire process for the charade that it undoubtedly was.

There is a lesson in this for Netanyahu in the Israeli constitutional drama. His proposals have not yet reached beyond the streets of Tel Aviv. With all the gerrymandering at his disposal he might yet encounter a court as firmly principled and resolute as was judge Schreiner.

James Madison’s injunction, recorded in the Federalist Papers collection of articles and essays, that government requires the ability “to control itself”, was perhaps a forlorn hope. The better solution is that the government must be constantly reminded that it is subject to the discipline of the rule of law, in the manner of the estimable Schreiner.

• Van Schalkwyk, a former judge of the Supreme Court of SA and author of three books, chairs the Free Market Foundation board and its Rule of Law Project. He writes in his personal capacity.