Perspective 91. Israel's Democracy: Under Threat?

The recent Israeli election produced a government giving the far right and religious sectors more power than ever before. Leftists, and most centrists, are understandably alarmed. But Bibi Netanyahu is an old hand; is there a real threat to Israeli democracy?

Yes. Israel’s new Minister of Justice, Yariv Levin, has unveiled proposed legislation, representing the coalition, that would erase the power of the Supreme Court to throw out undemocratic acts. A simple majority of 61 Knesset members could shut down newspapers, change election rules, or outlaw movements they didn’t like.

In perspective, the problem begins with the fact that Israel has no written constitution, since secular and religious forces hold different conceptions of what a Jewish state should be (a subject for another time). Instead, over time a series of 14 “Basic Laws” have been adopted, with the understanding that they would be the building blocks of an eventual constitution. Some of the Basic Laws require a slightly higher majority for amendment; as we political scientists would put it, they are slightly “entrenched.” But basically they are simply acts of the Knesset that can be superseded by subsequent acts of the Knesset, if sometimes requiring more a few more votes.

Here Israel’s Supreme Court stepped into the breach. It should be noted that one of the Basic Laws is that establishing the judicial system, under which Supreme Court justices are chosen by an Appointment Committee of three current justices, two cabinet ministers, two Knesset members chosen by secret ballot, and two members of the Israel Bar Association. This relatively non-political process guarantees the professionalism, continuity, and independence of the court.

In a manner reminiscent of Marbury vs. Madison in U.S. tradition, Israel’s Supreme Court has asserted and exercised its power to nullify legislation that violated basic democratic values (citing Israel’s Declaration of Independence) or that were contrary to the Basic Laws, including the Basic Law establishing the judiciary system itself.

What the new government proposes is an “over-ride” law allowing a simple majority to nullify any decision of the Supreme Court. And for good measure it would also alter the appointment process in order to give the government more influence over the composition of the court.

Opposition leader Yair Lapid has denounced the proposed legislation, charging that it would “threaten the entire constitutional structure of Israel.” This seems illogical, given that there is no written constitution. But Lapid is right: there is a constitutional structure that, as in Great Britain, has been built by practice and precedent, and which has been a primary bulwark of democracy and basic human rights. And it is under attack.

The model for Bibi, however, does not seem to be Great Britain, but rather the Hungary of Victor Orban. In that case democracy was demolished by a steady onslaught of “legal” acts that robbed it of any real content.