Israel still has no constitution, and the separation of powers seems fragile. What challenges will Israel’s democracy face in the next government?
Israel’s democracy is more fragile than other Western democracies, and more vulnerable to be exploited by a majority keen on implementing populist ideas. That is why some of the plans of the probable incoming right-wing government under Benjamin Netanyahu pose a serious threat to Israeli democracy as we know it.
To explain the fragility of Israel’s democratic system, it is helpful to briefly look at the country’s origins. After Israel was founded in 1948, it was immediately attacked by seven different Arab armies who wanted to eliminate the nascent Israeli state. For the Israeli leadership at that time it was therefore of utmost importance to create consensus among different factions to allow for effective decision-making. Yet it turned out to be impossible to reach consensus over a constitution, mainly due to disagreements around the relationship between religion and state. Therefore the decision was made to assign the Knesset, the Israeli parliament, the role of a constitutional assembly that was supposed to agree on a constitution within a year. Unfortunately, this never happened, and 73 years later Israel still does not have a constitution that would enshrine basic principles such as the rights of the individual or the basic arrangement of checks and balances.
That Israel nevertheless has flourished as a vibrant democracy is mainly a result of strong democratic traditions over time. But since this tradition is not anchored in a constitution, there is nothing that protects the basic democratic rules of the game vis-à-vis a political majority bent on changing the system.
The future governing coalition will most likely consist of Netanyahu’s Likud party, the right-wing Religious Zionist party and two ultra-Orthodox parties. There is still much uncertainty regarding their plans since there is usually a difference between parties’ agendas during election campaigns and their actual legislative programs. But some of the judicial reforms that Religious Zionism’s representatives have proposed so far are worrying: they have the potential to lead to a complete overhaul of the system of checks and balances.
One of these initiatives is the so-called override clause that will allow a simple Knesset majority of 61 to override judicial reviews and decisions of the Supreme Court on Knesset legislation. A second initiative is an attempt to politicize the system of the appointment of judges, so that politicians from the majority would gain exclusive control over these appointments. And a third initiative aims at politicizing some of the professional roles in the civil services. If all of these steps are indeed to be implemented, this will lead to a concentration of power in the hands of the political executive, without the possibility of proper judicial oversight and without any protection of the rights of minorities. So for example, law initiatives infringing on the rights of minorities such as the LGBT community or Israel’s Arab citizens would go unchallenged. This would fundamentally change the nature of Israel’s democracy.
If such judicial and constitutional changes would be made in an extreme manner, without substantive dialogue and broad consensus, there is a real danger that Israel could find itself in a situation where it faces fundamental challenges to its democratic order and institutions.
The interview was recorded and published in Der Taggespiegel.