Yohanan Plesner, Israel Democracy Institute, October 30, 2019
With permission, read full article at IDI.
The ultimate result of September’s election in Israel is still unclear. We do not yet know what type of coalition will be formed, when it will come together, or who will head it.
We do know, however, that Israeli democracy had dodged a bullet.
This is because, no matter who takes the reins of government or even if Israel holds a third round of elections, a radical assault on our judicial system has been halted.
The weakening of Prime Minister Benjamin Netanyahu’s mandate has stalled a number of initiatives that, had they been enacted, would have weakened the judiciary and undermined Israel’s system of checks and balances. These so-called reforms would have transformed Israel from a “substantive” democracy that safeguards the rights of political and societal minorities into a “procedural” democracy where the will of the majority trumps all other factors.
Now, the question remains, what will Israel do with this reprieve and can this new reality be harnessed to strengthen the country’s democratic fabric?
The biggest bullet dodged in September was the so-called “override clause,” which was being promoted by the right-wing coalition that almost came together after the April election. The destructive legislation would have allowed the Knesset to override the Supreme Court if the judges deemed a piece of legislation unconstitutional. Some legislators on the right also spoke of the need for certain Knesset and government administrative decisions to be made exempt from judicial oversight. This would have covered everything from directives issued by cabinet ministers to decisions by the Knesset regarding the immunity its members enjoy from legal prosecution.
Such changes would be extremely dangerous for Israel’s unique democracy. Other liberal democracies rely on presidential vetoes, bicameral systems or even regional organizations such as the European Union to ensure separation of powers and checks and balances. None of these safeguards exist in Israel. In addition, our executive and legislative branches are intertwined with a cabinet that is always assured a majority in the Knesset. If judicial oversight were limited, whoever holds the majority in the Knesset would enjoy unchecked political power.
Two of the most problematic proposals before 2019’s second election in September would have politicized processes that previously had been considered independent and professional.
The first would have altered the makeup of the legal advisory position in government ministries. Under the current system, these advisers — like inspectors general in the American system — act independently of the politicians that oversee ministries and instead answer in Israel to the attorney general — an appointed nonpartisan position. The new proposal would see these legal advisers be appointed by, and report to, the cabinet ministers.
The second proposal would have altered the nomination process for Israel’s judges. In the current system, nominations are brought to a committee that includes representatives from the government, Knesset, the courts and the Israel Bar Association. The “reform” called for judges to be nominated by the government and then pass either a Knesset committee or a vote of the full house.
The idea of politically appointed legal advisers and justices being approved by the legislature makes sense in the American system. In Israel, however, where the separation between the branches of government is already so tenuous, it would only mean the further politicization of positions that are supposed to serve as independent watchdogs against abuses of power.
All of these proposals were born out of a combination of political forces. A cohort of Israeli politicians on the right has long held a deep-seated ideological belief that the judiciary — and the Supreme Court in particular — holds a disproportionate sway in the Israeli political system. In recent years, these ideologues have joined forces with allies of Netanyahu, who have sought political solutions for his legal troubles.
The good news is that — for now — the danger has passed. The way the political map is laid out today, it is difficult to imagine a governing coalition that does not include both the Likud and the Blue and White party. If some sort of unity government is formed, either under the leadership of Netanyahu or Blue and White’s Benny Gantz, any such proposal would be dead upon arrival. Gantz’s party made clear through both rounds of the election that they opposed these judicial reforms. Moreover, Blue and White said it wouldn’t join a coalition that requires such anti-democratic initiatives and would quit the cabinet if they were raised.
It is important to note that initiatives raised during the coalition talks after April’s election were downplayed by even their proponents during September’s redo election. This is not surprising: Polling we have conducted at IDI shows these changes to be unpopular even among those who voted for right-wing parties. Happily, even if all the coalition talks fail and Israel heads to a third election in early 2020, the radical proposals detailed above will likely be shelved for the foreseeable future.
While proponents of Israeli democracy can breathe a little easier at the moment, there is still much work to be done. Too many Israelis are willing to accept these types of changes regardless of the negative long-term ramifications for the democratic structure of the country. Those of us who care about values of judicial independence, government oversight, and checks and balances must redouble our efforts to educate politicians, decision makers and the general public about these issues. Most of all, we must work toward long-term, systematic and constitutional reforms that will bolster Israel’s unique character as a democratic and Jewish state.
The article was published in the New York Jewish Week.