The deep rift over the ruling coalition’s malicious effort to undermine the foundations of democracy in Israel offers an exceptional opportunity to highlight some of the basic concepts of Israeli democracy, its vulnerability and the dangers to its very existence. Three of the key components of this malicious effort, presented in the guise of “judicial reform,” are:
- The override clause: This clause would empower the Israeli legislature (the Knesset) to override a Supreme Court ruling that deems a law unconstitutional, with a simple majority of 50 percent + 1 (61 members of Knesset). No such clause exists in the constitution of any democratic country, except for the “notwithstanding clause” in Canada, a country with a stable constitution.
- The appointment of judges: The ruling coalition would enjoy a majority on the Judicial Selection Committee. Such politicization of the court exists only in authoritarian regimes.
- Legal advisers: Israel’s attorney general (who serves as the executive branch’s legal adviser as well as the state’s chief prosecutor) would be appointed by the government according to political considerations. Similarly, the legal advisers in government ministries would be appointed by the ministers along partisan lines. The legal opinions of these advisers would no longer constrain the government.
Three catalyzers have converged to fuel this benighted effort. The first is Prime Minister Benjamin Netanyahu. That he is motivated by his own personal agenda – his desperate effort to escape conviction – is impossible to hide. Netanyahu’s own public record over the years clearly shows his profound understanding of the democratic norms he has defended in the past.
But after choosing Yariv Levin, the second catalyzer, to lead the attack against our system of government, it is clear that Netanyahu’s conduct is steered by his personal interest. The third catalyzer is Simcha Rothman, the MK (minister of Knesset) appointed to chair the Knesset’s Constitution, Law and Justice Committee. Rothman is an agent of the ultra-right Kohelet Policy Forum, a so-called “libertarian” organization financed by ultra-conservative American billionaires.
Proponents of the legislation are cynically exploiting the vulnerability of our parliament. Indeed, there is nowhere else in the democratic world that allows the possibility of striking such a mortal blow to the constitutional foundations of democracy. This is possible in Israel because of the structural anomaly of our legislature. It is the only parliament in the world where lawmakers are also members of a constitutional assembly. The core mission of a constitutional assembly is to formulate principles that will ensure the stability and resilience of the democracy over time. Thus, its focus is always on future generations. Members of parliament, on the other hand, typically set their sights on the next elections.
In addition, the 13 Basic Laws enacted by the Knesset over the years (1958-1992), which serve as a fragile constitutional foundation for our democracy, can be amended in most cases by a simple majority. In comparison, amending an article in the constitution of other democracies involves a complex process and requires a special majority that extends beyond the ruling coalition.
In the current Knesset, as part of the unprecedented coalition agreements, a government of 37 ministers and deputy ministers was formed. This means that a third of the Knesset’s membership has taken on leadership roles in the executive branch, at the expense of their parliamentary duties. The Israeli House of Representatives has lost its vitality. And if the plan to ravage the judicial branch is implemented, our state will remain with an all-powerful executive branch and become a full-blown dictatorship.
A widespread wave of protest has swelled in recent weeks in response to the impending threat to the liberty of Israel’s citizens and to the state’s economic wellbeing. In this dire reality, some voices are calling for compromise. The former attorney general, Avichai Mendelblit, thinks otherwise:
“I’m always in favor of compromises. But now, when they’re saying [to the justice system] you won’t be independent — on this, it is impossible to compromise,” he recently told a reporter. “It’s impossible to be one-quarter independent or one-tenth independent.” When asked whether a moment may come when everything spins out of control, he responded, “We’re only at the beginning of the road. They won’t give up. There will be violence in the end. Someone will pay the price in blood.”
It is difficult to say how future historians will describe the current rift in Israeli democracy. Will they describe a fracture that was impossible to repair or a heroic effort that picked up the pieces and reconstructed the Zionist contours of Israel?
Arye Carmon is a distinguished visiting fellow at the Hoover Institution at Stanford University. He is the founder of the Israel Democracy Institute, a Jerusalem-based think tank.