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Symposium–Part 4 of 7: Constitutional Retrogression in Israel

[Editor’s Note: This is the fourth of 7 parts in our I-CONnect/ICON-S-IL symposium on the subject of “Constitutional Capture in Israel?” The introduction to the symposium is available here.]


Nadiv Mordechay, Hebrew University of Jerusalem & Yaniv Roznai, Interdisciplinary Center Herzliya

There are many similarities between Prime Minister Benjamin Netanyahu and President Donald Trump. Most noticeable is the identical rhetoric. Anyone who follows President Trump on Twitter can easily identify the populist style. Sentences are short, the message is unequivocal. Authority is eminent and the target audience is clear. The electoral harvest is immediate, even if may lead to a direct social or diplomatic crisis. The political path to be elected was the same as well. Targeting the lowest commonality of that part of the electorate regarded until recently as excluded from decision-making focal-points and institutions. The means to achieve political goals are similar as well: distrust of the law, disregarding professionals, contempt for bureaucracy and existing institutions, and a desire to ‘roll back the state’. A central common feature is the disregarding and offensive approach towards the media.[1]

However, one element separates the two leaders. Contrary to President Trump, who has not completed his first-year in office, Netanyahu has been serving continuously as Prime Minister for over eight years, unprecedentedly surpassing Israel’s founder David Ben-Gurion. And contrary to President Trump, who is still deeply contested even within his own party, Netanyahu has been perceived in Israel – at least until recently – as the ever-lasting candidate for the prime-ministership and as the only leader who can deal with the complicated challenges the State of Israel faces. “King Bibi”[2].

It is imperative to focus the spotlight on the consequences of Netanyahu’s political dominance and its implications for the Israeli democratic system and most particularly to Israel’s fragile constitutional order.

Within the global democratic recession and against the backdrop of countries that seem to have already crossed the competitive authoritarian Rubicon, we wish to point out the movement towards constitutional retrogression in Israel. Huq and Ginsburg define constitutional retrogression as an “…incremental (but ultimately substantial) decay in three basic predicates of democracy — competitive elections, liberal rights to speech and association, and the adjudicative and administrative rule of law necessary for democratic choice to thrive”.[3] All three bases[4] are under constant threats and even though their decline is incremental, we claim that recent developments put Israel on a dangerous route to a constitutional retrogression. A strong leadership coupled with rising political elites are leading to an erosion of Israel’s democratic institutions and to an incremental democratic backslide. Since we published the original Hebrew-post, the criminal investigations that have accumulated against Netanyahu are shaking the public discourse. However, even if we are witnessing the end of the ‘Netanyahu era’ (which is unclear) – it will be impossible to ignore the democratic consequences of the last decade.

The well-known constitutional status of the 1992 Basic Laws on human rights coupled with the bold reputation of the Israeli Supreme Court under the leadership of Chief Justice Aharon Barak have led to the common perception of the Israeli constitutional project as a liberal-Western ‘success story’. Nonetheless, in contrast to the outstanding reputation of the constitutional revolution especially internationally and within certain circles domestically, it has been controversial in the domestic arena since its inception. From the early “constitutional spring” of the mid-1990s,[5] the existence and scope of constitutionalism in Israel has been contested. Its opponents characterized the constitution as an elite’s project (be it the new judicial elite or the “old hegemonic”[6] one) that promoted universal values and created a constitution without the ‘people’. Since the constitutional revolution, the court has exercised its role “in the shadow of this original sin”.[7] What began as public and political criticism within narrow circles in Israeli politics has become widespread and consolidated political criticism in the early 2000s,[8] and a very powerful political front in the last decade, whose members are senior political figures in the Executive and the Knesset.

However, the recent years rise of new elites signifies a sharper attack on those values of Constitutionalism. The political dominance of the right wing in Israel; The inability to settle the Israeli-Palestinian conflict; the economic inequality and previous decade’s governments liberalization policies; the rise of Religious Zionism as a social and political elite; and the consolidation of political power around Netanyahu’s leadership, have all created a new constitutional climate. In this new climate, not only is there a greater commitment to the values of nationalism and the territorial integrity of the state but there is also a sharper attack on the symbolic values of Constitutionalism; a counter-revolution to the constitutional revolution.

We distinguish between types of anti-constitutional performances. First, what we call instances of “direct anti-constitutionalism”, i.e., the main hubs of direct, “abusive”[9] political clashes with existing Israeli constitutional structures. A notable example is the government’s recurring attempts to enact “Basic Law: Israel as the Nation-State of the Jewish People” with an explicit intention to shift the balance between the basic values of the state as “Jewish and democratic” so that in case of a conflict the former would prevail over the latter. The ever-increasing threats to the judiciary are another source of concern. These include numerous legislative proposals to drastically limit judicial review and substantial threats to change the judges’ election procedures; and an overt desire to appoint conservative judges. The strength of the Supreme Court, nowadays under the largest political attack in its history, has not been broken yet.[10]

Political consolidation is another central feature of recent years. Coupled with the weakening of opposition there is a concentration of governmental powers in the hands of Prime Minister Netanyahu, reducing the weight of his coalition partners.[11] Finally, there are increasing attempts to change the legal status of the occupied territories, with aims to unilaterally annex parts of them into Israel. Alongside, and not less important, the “Small C” Israeli constitution is shaking. The various Netanyahu coalitions adopted (or currently seeks to adopt) a series of laws designed to limit opposition and to entrench some illiberal administrative regimes in the political and civil arena.

Second, recent years reveal what we term second-order instances of “anti-constitutionalism” concerning the civil society, media, culture and education sectors, which have an aggregate effect on the Israeli constitutional order. This includes, for example, the declared intentions to restrict the ability of civil society organizations to criticize governmental policy and the government’s attempts to link public funding and “cultural loyalty” to state values, which is aimed at effectively silencing critical positions. Among these changes is also the social de-legitimization of the Arab minority.

There are multiple reasons leading to such retrogression. To mention but few, there is a relatively large constituency with weak commitment to a liberal democracy; and there is a conceptual political maneuver which identifies critical voices in society with de-legitimizing the state. A comparison of the Israeli situation to some of the more familiar recent comparative cases reveals, to our opinion, several troubling characteristics of populism, political centralization of powers, a continuing risk for the competitiveness of the political system and executive aggrandizement. Not to be mistaken. Israel is still a functioning democracy with strong judicial and democratic institutions. Nevertheless, Israel is in the midst of a constitutional retrogression process; and not just a legitimate “constitutional hardball”. This is characterized inter alia by a strong ideological opposition to the 1992 “constitutional revolution” and the liberal-universal values it represents, populist and separatist political rhetoric, continuous attempts to change the state’s liberal character, and direct hostility to constitutional institutions identified with the Israeli constitution and to civil society organizations which are associated with Palestinians rights. The dominance of the right-wing Netanyahu coalitions has made these trends systematic and they are becoming more stringent over time.

These changes lead us to point out the need for revisiting existing narratives of Israeli constitutionalism. Israel’s branding as a constitutional liberal success story was mistaken. Current scholarly perception is evolving in a troubling gap. While traditional scholarly perception of the “constitutional revolution” is a one of a liberal project, in reality, it is much more reasonable to perceive it as a transformative (and perhaps even a transitional) one. The surrender of the constitutional revolution designers (and of Israeli literature) to a “liberal narrative” of the constitutional revolution was even counterproductive. It led the court itself, and the public arena to perceive Israeli constitutionalism as a liberal-western project, and most particularly – allowed critics of the constitutional revolution to criticize it in terms of anti-liberalism, localism, and revisionism. That, while a comparative functional examination of what the court actually did in these decades, might have produced a different picture: that of a transformative project similar in character to that of the ‘Global South’. The Israeli case, in other words, is slightly removed from the ‘liberal North’ and closer to the ‘Global South’.

Although in reality the constitutional project was more transformative than what was attributed to it – it was not sufficiently adequate to fit the current democratic challenges of Israel, as reflected in the recent retrogression. The constitutional revolution was a human rights revolution. The account of liberal constitutionalism led to a focus on constitutional anti-majoritarian judicial review and to the development of a robust concept, and doctrines, of human rights and balancing, but to the neglect (or at least to insufficient development) of important institutional and participatory elements that could strengthen the democratic foundations. Current challenges do not relate, exclusively, to the protection of rights, but rather to the “law of democracy” itself, constitutional identity, separation of powers and social justice. Judicial review and scholarly writings alike should focus on strengthening the democratic foundations of the state and the protection of democratic institutions. Thus, when thinking of ways of ‘recalculating the constitutional track’, institutional aspects of the Israeli constitution must be at the forefront.[12] Moreover, there is a need for a new theoretical understanding of Israeli constitutionalism as reflected in the fragile democracies literature, which for some reason included Israel, in the past, only as a case-study for a “militant democracy” but not as a case-study of “Hyper-executivesim”[13]. “Comparative matters”[14], and in this sense, a comparative exploration of Israel with the ‘Global South’ or fragile democracies examples, may assist to overcome the current democratic challenges.

Suggested Citation: Nadiv Mordechay & Yaniv Roznai, Constitutional Retrogression in Israel, Int’l J. Const. L. Blog, Aug. 23, 2017, at: http://www.iconnectblog.com/2017/08/constitutional-retrogression-israel


The authors wish to thank Barak Medina, Ran Hirschl, Suzie Navot, Gila Stopler and Sergio Verdugo for commenting on this and on an early-elaborated version, and to Mark Graber, for inviting us to take a part in the Maryland ‘Constitutional Schmooze’ from which this study springs. An extended version of this post is forthcoming in 77(1) Maryland Law Review (2017).

[1] See Michael J. Abramowitz, Hobbling a Champion of Global Press Freedom, Freedom of the Press 2017, https://freedomhouse.org/report/freedom-press/freedom-press-2017

[2] See Ishaan Tharoor, Why Bibi Netanyahu Is King of Israel, Time (7 May 2012),  http://world.time.com/2012/05/17/cover-story-why-bibi-netanyahu-is-king-of-israel/

[3]Aziz Z. Huq and Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. (2018), https://ssrn.com/abstract=2901776

[4] For the ongoing weakening the status of freedom of speech, see Barak Medina’s list in this symposium.

[5] For an important placement of the Israeli story in a more global context, see Joseph H.H. Weiler & Doreen Lustig, A Good Place in the Middle: The Israeli Constitutional Revolution from a Global and Comparative Perspective, 38 Tel-Aviv Un.  L. Rev. (2016) [Heb.]; Barak Medina, Domestic Human Rights Adjudication in the Shadow of International Law: The Status of Human Rights Conventions, 50 Israel Law Review (Forthcoming, 2017).

[6] Ran Hirschl, Towards Juristocracy (2004).

[7] Wojciech Sadurski, Constitutional Courts in Transition Processes: Legitimacy and Democratization, Sydney Law School Legal Studies Research Paper No.11/53, 4 (2011).

[8] Ruth Gavison, Mordhechai Kremnitzer and Yoav Dotan, Judicial Activism: For and Against, The Role of the High Court of Justice in Israeli Society (2000) [Heb.].

[9] See e.g. David Landau, Abusive Constitutionalism, 47 U. C. Irvine L. Rev. 189 (2013).

[10] See our recent report, Uzi Vogelman, Nadiv Mordechay, Yaniv Roznai, and Tehilla Schwartz, Developments in Israeli Constitutional Law, in 2016 Global Review of Constitutional Law 105-109 (Richard Albert, David Landau, Pietro Faraguna and Simon Drugda eds., I·CONnect-Clough Center, 2017), http://www.bc.edu/content/dam/files/centers/clough/constitutional-law/ReviewofConLaw-final.pdf

[11]At a certain point, Prime Minister Netanyahu has simultaneously been Israel’s Prime Minister, Foreign Minister, Communications Minister, Economy Minister, and Regional Co-operation Minister.

[12] See Daryl J. Levinson, Foreword: Looking for Power in Public Law, 130 Harv. L. Rev. 31 (2016).

[13] See Roberto Gargarella, The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860, 173 (2010).

[14] Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014).

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Published on August 23, 2017
Author:          Filed under: Analysis
 

2 Responses

  1. Avraham Keslinger

    1. How is the attempt to change the legal status of this or that territory “constitutional capture”?

    2. Is all attempt to amend or replace a constitution constitutional capture? If so, The US has experienced more than twenty federal constitutional captures and numerous state captures.

    • Yaniv Roznai

      Dear Avraham,

      Thank you for these important questions, both obviously deserve wider treatment that may be covered in this limited reply. Therefore, I shall only reply briefly (you are also welcome to read the full study once published, and we will welcome comments on it).
      As for the first questions, the attempts to unilaterally annex parts of the occupied territories into Israel raise difficulties both from international and constitutional law perspectives. Such an act would violate basic international norms and would also change the domestically customary constitutional status of the land. Moreover, obviously, if Palestinians living in the annexed territories will not be offered Israeli citizenship, this raises a fundamental concern for our democracy. Therefore, these attempts carry undemocratic features and are a part (as we emphasize in the post, there are accumulation of events and the process is incremental…) of the constitutional retrogression (we intentionally use this term rather than capture which carries, to our belief, a narrower meaning).

      As for the second question, “Is all attempt to amend or replace a constitution constitutional capture?” of course not! Constitutional amendments are part of a healthy democracy and are means for the constitutional order to adapt to changing circumstances. The problem is when the constitutional changes are, what David Landau termed “abusive”. When they undermine the constitutional order or democracy, undermine separation of powers, violate fundamental rights etc’. The comparison to the US is inapplicable. Amending the US constitution via Art. V is a most difficult task – almost impossible. There is a time-consuming, deliberative and inclusive procedural demands, with checks and balances throughout the process. In contrast, in order to amend the Israeli ‘constitutions’ (its basic laws), a regular legislative procedure is enough. Now, when the government controls the Knesset and naturally has the ability to change the constitution at will, this raises various difficulties for the stability of the constitutional order. What limitations are then imposed on the government? Are there any? To give just one example, only between May 13, 2015 and July 30, 2015, three temporary basic laws were enacted. One creates special rules for ministerial resignations from the Knesset; another eliminates restrictions on the government’s size; and the third introduces a system of biannual budgeting, thereby circumventing the established principle according to which the government must ordinarily submit an annual budget. This naturally limits the oversight capacity of the Parliament which is anyway limited in light of the constructive vote of no confidence .. Now, these three constitutional laws are to apply temporarily only during the term of the twentieth Knesset. In other word, temporary or ad hoc constitutional amendments have been recently used to upset the balance of power in the country in favor of the incumbent government. This, along other attempts to undermine the power of the judicial branch, is very problematic.

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