Gros, Aeyal M.

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The Populist Constitutional Revolutionin IsraelAeyal Gross 2023-01-19T11:17:32On December 11th 2022, Israel’s Minister of Justice, Yariv Levin, publishedmemorandums outlining the first two major steps in the constitutional overhaulplanned by Netanyahu’s new government – an overhaul at the epicenter of the riseof constitutional populism in Israel. This essay will outline the proposed changes,explain the paradoxes of Israeli constitutional law that make it vulnerable to apopulist attack, and point to the unique context of “democratic backsliding” in Israel,which occurs within a specific ethno-national context involving ongoing militaryoccupation.Proposed Reforms to the Basic LawsThe memorandums include major reforms to two of Israel’s Basic Laws. BasicLaws are laws enacted by parliament in its “constitutive” role, based on a 1950compromise to legislate a series of Basic Laws that are supposed to be chapters in afuture constitution.  Since the mid-1990s, the Israeli Supreme Court took the positionthat all Basic Laws enjoy supremacy over regular legislation in a way that enablesconstitutional judicial review, even if they are in fact legislated in the same forum andby the same procedure and majority as regular legislation. As will be shown below,this paradox is part of what allows for the current abuse of constitutional power bythe new coalition government.One of the memorandums entails a major revision to Basic Law: The Judiciary. Themain proposed changes are as follows:1. An overhaul of the judicial appointment committee. So far, this committee iscomprised of two government ministers, two members of the parliament, tworepresentatives of the Bar and three Supreme Court justices. The new proposal:(1) enlarges the number of government ministers to three; (2) increases themembers of parliament to three, determining they will no longer be chosen bythe Knesset but rather be the chairs of three parliamentary committees, twoof which are usually headed by the coalition, and one by the opposition; and(3) most significantly, replaces the representatives chosen by the Bar with twopublic representatives personally chosen by the Minister of Justice. The numberof judges on the committee remains unchanged. The result of this overhaulwould be a committee controlled by the government, which would have sevenrepresentatives out of eleven. The committee would transform from a balancedone into one that allows the coalition government to appoint judges at will –but also to remove them, as removal falls within the committee’s authority.According to the proposal, a six-member majority would be required to appoint aSupreme Court judge and a nine-member majority to remove one.- 1 -2. A reform to the process of judicial review of primary legislation that contradictsBasic Laws. According to the proposal, a statute can be struck down only if heldunconstitutional by 80% or more of all Supreme Court Justices. This change willmake judicial review of statutes based on the Basic Laws almost impossible.3. A determination that a decision regarding the judicial review of a statute will notserve as a precedent regarding any other statute.4. An “override clause,” meaning that parliament can re-legislate, by a majorityof its members, a law struck down as unconstitutional, as long as the statutestates explicitly that it is valid “notwithstanding” the Court’s ruling. This law willbe immune from judicial review for four years and if it will be re-enacted again bya subsequent parliament – indefinitely.5. A prohibition of judicial review regarding Basic Laws – in a way that preemptsthe nascent “unconstitutional constitutional amendment” doctrine and theparallel doctrine concerning abuse of constitutive power. This will allowparliament to protect from judicial review certain norms that may be struckdown if included in a regular statute. One example already in the pipeline isa proposed Basic Law on immigration that seeks to revive – and entrench –provisions previously struck down in regular legislation, which allowed indefinitedetention of asylum seekers. The proposed bill will also restrict asylum seekers’access to the judicial system.6. A prohibition against reviewing administrative action based on thereasonableness doctrine.Similar changes are proposed in a parallel bill proposed by Simcha Rotman, theChair of the Knesset’s Constitution, Law and Justice Committee. In spite of someimportant differences, his proposal shares the main tenets of Levin’s proposal.An additional proposal includes suggested changes to Basic Law: The Government.The main proposed changes are:1. The government may determine its legal position on any matter.2. The Prime Minister and any minister may determine the positions of their officeson any legal matter.3. Any legal advice given to the government, to the Prime Minister or toany government minister will not bind them; they can reject it and act incontradiction. (This is complemented by a proposal in the pipeline to turnlegal advisors in government ministries into personal appointees by the sittingminister, rather than professional appointees.)Constitutional BacklashThese proposals, which are going to be discussed in the Knesset’s Constitution,Law and Justice Committee over the new few weeks, form a major anti-constitutionalrevolution that must be understood as part of a major turn to authoritarian populismby the new Israeli government. While populism and democratic backsliding are notnovelties in Israel, and we have already witnessed populist constitutional changessuch as the “Nation State” Basic Law, the current changes are of dimensions notseen before. This is enabled by the fact that unlike in the past, this time Netanyahu- 2 -is not dependent for his coalition on any centrist party – whereas in the past hiscoalition partners had vetoed such steps. Instead, this coalition includes extremeright-wing politicians, who are backed by right-wing think tanks that have beenpreparing for this moment for years.The proposed changes are part of an ongoing backlash to the so-called“constitutional revolution” of 1992, when the Court, under the leadership of JusticeAharon Barak, developed the concept of judicial review based upon the Basic Laws,following the legislation of Basic Law: Human Dignity and Liberty. Like other populistleaders, the advocates of change argue they want to reinforce democracy by lettingthe people rule, while in fact abolishing the judicial independence that is requiredfor democracy. In the Israeli context, they argue that the development of judicialreview by the Court based on the Basic Laws, absent a full constitution, was itselfnot legitimate.In the Israeli context, no discussion of ‘democratic backsliding’ can ignore the realityof the ongoing military occupation of the Occupied Palestinian Territory (OPT) –a prolonged occupation that entails military control over millions of people whoserights are trampled upon regularly, by a government they did not choose, in a waythat undermines democracy. To a large extent, the current reforms are intended toentrench this control, by removing any legal obstacles even to those few measuresregarding the occupation that the legal system had struck down, such as the takingsof private Palestinian lands for Jewish settlements.Overall, given the control the coalition government de facto has over the parliament,the result of these changes is a consolidation of power by the government, whichwould no longer be bound by the legal system. If these proposals (even in asomewhat tweaked version) were made into law – and there is no reason to thinkthey will not, given that Netanyahu’s coalition currently enjoys a strong majority in theKnesset – the coalition government will have total control over judicial appointments,but at the same time will also be able to override any holding of the Supreme Courtconcerning the constitutionality of statutes, unbound by any opinion of its own legaladvisors. This comes in addition to the ability to entrench any arrangement within“Basic Laws” that will be immune from judicial scrutiny.The abolition of the reasonableness doctrine seeks to curtail judicial review ofadministrative action. Arguably, courts will be able to bypass this prohibition byturning to other administrative law doctrines such as proportionality, equality,etcetera; yet nonetheless, its expressive and potentially chilling effects aresignificant.Taken together, the proposals seek to erase the idea of a government limited bylaw and to concentrate all power within the ruling coalition. Accordingly, all seven ofIsrael’s living previous Attorney Generals described the plan as one that threatensto destruct Israel’s legal system. Even more dramatically, Supreme Court PresidentEsther Hayut called the program an attack on the judicial system, intended at itsdestruction and at giving a fatal blow to Israel’s democratic identity.- 3 -Constitutional and Administrative CaptureThe changes in judicial appointments, as well as restrictions on judicial review,will probably remind readers of constitutional capture processes that occurredin Hungary, Poland and other countries where authoritarian populism displaceddemocracy. However, for the purpose of fully understanding the extent of thewhat we are witnessing, it is necessary to consider not only the constitutionalchanges regarding judicial appointments and review. This post is too short to listall the changes in Israeli political life; but perhaps one of the most important andsometimes overlooked elements of the populist tsunami in Israel is the disintegrationof Israeli governmental ministers, with the aim of subordinating specific areas ofthe government to specific ministers or deputy ministers from the coalition, so theycan promote reactionary and authoritarian agendas. These changes are detailedin the coalition agreements Netanyahu struck with his coalition partners. They areaccomplished by appointment of an “additional minister” in an existing governmentdepartment (something enabled by a constitutional change to Basic Law: TheGovernment, enacted already on December 27th 2022), or of a deputy minister, orby shifting departments from one ministry to another.A few examples illustrate this:First, the subordination of the “civil administration,” which in practice governs thedaily life in the OPT, to an “additional minister” in the Ministry of Defense, ratherthan to the Military command chain. The Minister in question is Bezalael Smotrichfrom the Religious Zionist Party, whose agenda entails expanding settlementssignificantly.Second, the appointment of Avi Maoz from the Noam Party, which has a strong “anti-gender” homophobic agenda, to Deputy-Minister in the Prime Minister’s office. Underhis purview – rather than with the Ministry of Education – now falls the authority toapprove of external programs that are offered in schools, most likely to the detrimentof any democratic, feminist or pro-LGBT program that schools may choose toincorporate if approved by the division now torn out of the Ministry of Education’scontrol and entrusted to Maoz.Third, another reform that already took place is an amendment to the PoliceOrdinance, enacted on December 28th 2022. It undermines the independence ofthe police by giving the Minister in charge of it, now renamed Minister of National(in place of “internal”) Security, the authority to determine the police’s policies andpriorities, including its investigations policy.  This is especially significant given theappointment of Kahane disciple Itamar Ben-Gvir from the Jewish Power Party to thisoffice. Ben-Gvir has multiple previous convictions for criminal offences, includingincitement to racism and supporting Jewish terrorist groups. He already attemptedto influence police policy in a political way by ordering the police to ban Palestinianflags in demonstrations (a move which is legally dubious, to say the least) and toarrest demonstrators who block roads in the anti-government demonstrations thathave been taking place weekly since January 7th. Additionally, according to thecoalition agreements, the Israeli Border Police, a powerful agency involved in the- 4 -control of Palestinian populations and in various internal security issues, will bedetached from the police and directly subordinated to Ben-Gvir.These changes are supplemented by media law reform plans, which include a planto privatize the public broadcasting corporation, which has been a steadfast of fairreporting and quality programming, without being influenced by economic intereststhat affect private media outlets. It has managed to maintain its independencedespite its governmental nature. No less important are plans, according to thecoalition agreements, to amend Israel’s anti-discrimination law in a way that willcreate broad religious exceptions, in ways that may be detrimental especially toLGBT and women’s rights.The Frankenstate and the Elephant in the RoomAs we have learned from other countries, no singular move can be looked atseparately. As Kim Lane Scheppele and other have shown, we see the processwhereby measures are supposedly adopted from other countries in order to justifythem. For almost each measure, there is supposedly a parallel somewhere. Politicalappointments of judges in the US, a “notwithstanding clause” in Canada, etcetera.However, what we are witnessing is the partial adoption of tools that do existin some countries, without their broader context and without the constitutionalguarantees that accompany them elsewhere. Instead, we see an adoption of theleast democratic provisions from a few countries and their aggregation togetherinto a monstrous reality Scheppele decribed as the Frankenstate. For some, thisprocess will be seen as a natural continuation of the autocratic control Israel alreadydeploys towards the Palestinians in the OPT, now creeping into Israel. Others seeNetanyahu as agreeing to all this in the hope that he will eventually get his waywith further reforms that will undermine his ongoing corruption trial. In the Israelicase, the paradox whereby Basic Laws enjoy constitutional status even if they canbe legislated with a regular majority paves the way for populist authoritarians tointroduce major constitutional reforms, thus entrenching their anti-democratic moves,and further securing them by installing a prohibition of judicial review of the BasicLaws themselves.While the various moves by the government instigated big protests that maycontinue to expand over the next few weeks, a long breath seems to be neededfor the battle over Israeli democracy, especially given that the current proposalsare probably only the first steps and additional “reform” proposals are waiting downthe line. A fractured opposition that could not hold a government together faces acoalition of like-minded parties.The popular protests already include contentions about the elephant in the room– should the demonstrations also address the question of the occupation. Asdiscussed above, the Israeli case is unique in its ideological ethno-national featuresand the relationship between the “backsliding” and the continuation of a regime thathas never been democratic towards its Palestinian subjects.- 5 -Accordingly, while many argue that there is no democracy with occupation, andthat the current processes cannot be understood out of this context, others believethat raising the issue of occupation distracts from the immediate battle againstconstitutional reform and alienates centrist voters who don’t share the leftistopposition to the occupation. It is this author’s view that the current constitutionalchanges advanced by the new coalition are not just about entrenching its ownrule and protecting Netanyahu from the corruption trial, but are largely aboutentrenching the occupation, and more generally securing Israel’s Jewish “character”against decisions upholding rights of asylum seekers, LGBTs, and in some casesPalestinians.Any battle for democracy in Israel that ignores this will fail in the long run. However,the first constitutional crisis that may occur has to do with the judgment issued by theSupreme Court on December 18, 2022, in the petition concerning the appointmentof Aryeh Deri as Minister of the Interior, notwithstanding his recent conviction fortax offences. This appointment required a change (as part of the December 2022amendment) to Basic Law: The Government relaxing the rules about appointmentof convicted criminals as cabinet ministers. While the Supreme Court refrainedfrom giving a holding on the argument that the amendment is an abuse of theBasic Laws framework, it decided to strike down Deri’s appointment based mostlyon the “reasonableness” doctrine. Following this holding, the government mayaccelerate the legislative processes that will prohibit review on this basis. This,notwithstanding that the holding actually proves that such a move will not necessarilyfulfill the government’s with to curtail judicial review of administrative action, as asignificant number of judges relied on other administrative law doctrines instead of orin addition to reasonableness. Whether the Court will consider proposals curtailingits powers as constituting “unconstitutional constitutional amendments,” or whetherNetanyahu will attempt at re-appointing Deri, provoking further petitions centeringon other administrative law doctrines, we may witness a head-on collision with thegovernment. In any event, the collision may occur sooner or later, when Levin’slegislative plan, if and when it becomes law, will be attacked directly in the SupremeCourt. Either of these scenarios may lead to a constitutional crisis of dimensions thatIsrael has not witnessed before.- 6 -

The Populist Constitutional Revolution in Israel

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The Populist Constitutional Revolution in Israel

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