[Editor’s Note: This is the fifth 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.]
—Barak Medina, Hebrew University of Jerusalem
There is a real concern of an erosion of the Israeli government’s commitment to the ideals of a liberal democracy. At the same time, I do not share the view that Israel has already slid into a process of “constitutional capture,” similar to the trend against liberal democracy evident in countries like Turkey, and even E.U. members such as Hungary, Poland, and others. But the risk does exist, and an important question is what type of actions may mitigate it. Focusing on academic scholars, I suggest that we are required to a greater involvement in the public discourse, to offer critical evaluation of policies that are in conflict with fundamental liberal ideals. I find it counter-productive, however, to employ the “constitutional capture” slogan too quickly and too often. In what follows I say a few words on each of these two themes—Israel’s liberal democracy has not yet been “captured,” and the preferable strategy of addressing the risk that this process will happen in the future might be offering a more nuanced evaluation of political proposals, rather than questioning the legitimacy of even considering them.
Several office holders, including Knesset-members, ministers, and even the Prime-Minister, have expressed in recent years positions that are in deep conflict with fundamental principles of liberalism. For instance: a Knesset-member suggested that instead of executing the Supreme Court’s order to demolish houses built illegally in Israeli settlements in the Occupied Territories, the bulldozers would bring down the Supreme Court building; the religious services minister argued that Reform Jews cannot be called Jews; and the deputy foreign-affairs minister portrayed an Israeli NGO that collects IDF soldiers’ testimonials concerning their military service, “an enemy of Israel.” These views, and numerous others similar ones, reflect, and possibly also fuel, intolerant positions of the majority in Israel. For instance, one study found that 44% of the Jewish population in Israel justifies prohibiting expressing views refuting Israel’s Constitutional Identity as a Jewish state or advocating a boycott on the Israeli settlements in the Occupied Territories. A staggering proportion of 71% of the Jews (but only 23% of the Arabs) expressed the view, reported in another research, that the activities of human rights organizations in Israel are harmful. Of particular concern is the finding that in Israel of 2016, the percentage of persons of the Jewish population that reported that they are afraid to publicly express their political opinions has reached 38%, and among the Arab minority this proportion equals to almost one-half (46%).
The intolerance toward minority positions, and toward the Arab minority more generally, as well as against judicial review, are of course troubling. However, one should not conflate between political statements (and public sentiments) and governmental policies.
The Knesset enacted in recent years several laws that many, including the present author, find morally wrong and possibly also constitutionally invalid. These include norms curtailing free speech in specific areas, authorization to expropriate private land for Israeli settlements in the Occupied Territories, and more. But these laws are far from eroding Israel’s constitutional identity as a liberal democracy. As a general matter, these laws, as well as the policies the government employs, are quite limited in their adverse effect on free speech and other human rights. Importantly, Israel’s partial Bill of Rights, namely Basic-Law: Human Dignity and Liberty, which, as a formal matter, can be amended by the legislature, by a regular majority, is in fact, as a political matter, absolutely entrenched. In addition, the gate-keepers’ powers were not curtailed. The Attorney General is highly independent, and in several instances he even argued, both during the legislation proceedings and in court, that certain state actions, including legislation, are unconstitutional and therefore invalid. Similarly, the Israeli Supreme Court employs judicial review, which provides quite an effective protection of human rights. I thus find the position that Israel has already slid into the disturbing process of “constitutional capture” exaggerated.
In recent years, government officials have proposed revising certain institutional arrangements and prevailing legal doctrines, proposals that some of which were later enacted, and raised considerable criticism. While I share the view that these proposals are wrong, both policy-wise and as a matter of constitutional law, I find them part of a legitimate public deliberation, and a welcome involvement of the government in the on-going process of constitutional interpretation. Consider, for example, the pattern of weakening the status of freedom of speech, by expanding a “harm-in-one-step” approach. According to this approach, the harm that the government aims to prevent by curtailing speech is not inflicted by the acts of those incited by the speaker, but rather by the mere exposure of persons to certain expressions. It is caused by the derogating or otherwise insulting nature of the message, directed against certain persons. While in the past this approach was applied only in the limited area of prohibiting incitement to racism, in recent years the Israeli legislature has expanded it to other fields. This expansion is aimed at prohibiting expressions deemed harmful to national sentiments and ones questioning the legitimacy of Israel’s Constitutional Identity as a Jewish state. The prominent manifestations of this approach are two pieces of legislation enacted in 2011. One norm instructs the Minister of Finance to sanction an institution that receives public funding, if the institution supported disseminating certain views. The prohibited expressions include incitement to racism, but also incitement to violence or terror, views expressing denial of Israel’s existence as a Jewish and democratic state, commemorating Israel’s Independence Day as a day of mourning, and showing disrespect to the national flag. The other central norm along this pattern prohibits publishing a call to boycott a person exclusively because of his or her association with the state of Israel or to the Occupied Territories. The mere advocacy for boycott may trigger the denial of the right to obtain various public financial support, participate in public procurements, and, as far as non-Israeli citizens are concerned, obtain a permit to enter Israel. As indicated-above, while I find these norms unjustifiable, they are far from reflecting “constitutional capture.” To the contrary, the fact that the Knesset purposely avoided from imposing criminal liability, but restricted the implementation of the “harm-in-one-stage” approach to the context of employing the government’s power to allocate funds, demonstrates that the legislature is constrained by the duty to respect human rights.
One should not ignore the troubling signs of insufficient commitment of many in the Israeli political arena, and in the Israeli society more generally, to the fundamental ideals of liberalism, such as anti-collectivism, anti-consequentialism and tolerance. There is obviously no simple solution to this reality in the common culture of the duty to respect human rights and other foundations of a liberal democracy. Employing “militant”—or “intolerant”—democracy to protect fundamental values of liberalism is tempting and at times even inevitable, as in the case of banning anti-democratic political parties. But the risk of abusing the power to curtail speech, as well as moral and sociological considerations, require minimizing the use of this approach.
An important alternative is of course employing effective judicial review. In addition to scrutinizing specific state actions, judicial review may have a critical role in establishing a common culture of respect for human rights. To achieve the aim of creating a public awareness of the duty to respect human rights, the court should construct norms which are more rules-based. While the Israeli Supreme Court has done an excellent job in scrutinizing state actions, it was less successful in creating a common culture of respect for human rights, at least in part due to its over-reliance on standard-based, all-things-considered, case-by-case legal analysis. It might be the case that shifting to a more rules-based approach, “fleshing out” standards set in the constitutional text and translating them into rules, may have, at least in the long run, a positive sociological effect.
Finally, academic scholars too have a role in mitigating the risks to the survival of the Israeli democracy. Just as governments should use the doctrine of “militant” democracy with great care, so should those whose only power is their academic prestige. We should stand firm in expressing our reasoned views against unjustified infringements of human rights. We should participate in the public deliberation, including in the Knesset committees, on proposals such as Basic-Law: Israel as the Homeland of the Jewish People, and be part of the vibrant public discourse in Israel. But if I’m right in my assessment that the “constitutional capture” has yet to come, we should avoid crying wolf, in part in preparation for the time it really arrives.
Suggested Citation: Barak Medina, The Israeli Liberal Democracy: A Critical Assessment, Int’l J. Const. L. Blog, Aug. 24, 2017, at: http://www.iconnectblog.com/2017/08/the-israeli-liberal-democracy-a-critical-assessment