Israel’s proposed new constitution: Anyone but Netanyahu

Four inconclusive elections in 24 months, a series of transitional governments, and continued parliamentary deadlock have created a political contretemps that Israelis have termed “The Imbroglio” (the “plonter”).

Long-time incumbent Prime Minister Benjamin Netanyahu sits atop a clear majority for the center-right, but cannot put together a governing coalition; a vocal minority of elected parliamentarians on the right insists that it despises Netanyahu more than it wants any new government. At the same time, all the elected left-wing parties together lack the numbers so far to form their alternative government, even with the participation of the anti-Netanyahu right.

With potential fifth elections on the horizon, Yair Lapid, head of the left-wing crew of anti-Netanyahu parliamentarians, has revived his 15-month-old proposal to amend Israel’s basic laws. When Lapid first floated his proposal to disqualify the popular political rival Lapid cannot overcome at the ballot box, even ideological allies on the anti-Netanyahu left balked, arguing that such personalized constitutional punishments for political foes are illegitimate in a democracy.

Lapid remains uncowed. One of his amendments would make Israel one of the only countries in the world with term limits on Prime Ministers in a parliamentary system, alongside countries like Cuba and Vietnam. His other proposed laws would make Israel the only country in the world where an Attorney General could fire a serving Prime Minister, veto a candidacy for the Prime Ministership, and even block the ability of a member of parliament to serve as opposition leader, simply by accusing that person of a crime. Together, Lapid’s proposals would constitute the most dramatic legislative change ever to Israel’s constitutional law, effectively forbidding Netanyahu from serving in elected office, and posing the most serious threat to Israeli democracy in the young country’s history.

The Knesset, Israel’s parliament, has adopted serious changes to Israel’s constitutional law in the past — most notably in 1992 by enacting direct elections of the Prime Minister, in 2014 by increasing to 3.25% the minimum vote required for election to the Knesset, and in 2020 by adding the office of “alternative Prime Minister” to provide for unity coalitions among parties on opposite ends of the political spectrum.

All three reforms were failures. Direct elections for Prime Minister, coupled with unchanged proportional parliamentary elections, greatly strengthened sectoral parties, enabling them to extort increasingly short-lived governments. The Knesset canceled the reform in 2001 after only three elections.

The higher floor for election to the Knesset too has led to a sharp rise in sectoral voting, alongside an increase in purely personal politics, and the greatest political instability Israel has ever seen — namely, the current Imbroglio.

And the “alternatives” government created by the 2020 amendments has paralyzed the government, accelerating the transformation of the Attorney General’s staff into a Janissary Guard that controls government agendas, reverses government votes, discharges government ministers, and rewrites voting rules at will.

Constitutional structures of a state — particularly in countries that lack written constitutions like Israel and the United Kingdom — are delicate. They are balanced on compromises that reflect the collective political experience of the nation. In the best of cases, it is not always easy to foresee how constitutional changes might upset that balance. But, in this case, the disastrous future effects of Lapid’s proposed amendments to Israel’s basic laws are evident.

The Attorney General already has outsized powers that have elevated the whims of legal officials over the power of the public as expressed through elections and political debate. With Lapid’s approval, Attorney General Avichai Mandelblit has openly warred with the Prime Minister. Not only has Mandelblit placed Netanyahu on trial for the fabricated “crime” of seeking better media coverage, he has vetoed Netanyahu’s senior appointments, prevented Netanyahu raising money for his legal defense, held prime-time election-season press conferences to campaign against Netanyahu, and publicly threatened to use his own accusation of a fabricated crime as grounds for pushing Netanyahu out of office before any ruling in the trial.

(In 2019, I opposed the proposed criminal charges against Prime Minister Netanyahu in a hearing before Israel’s Attorney General on the grounds of their harm to free speech and a free media.)

Ratifying the Attorney General’s attempt to topple a Prime Minister without trial as part of Israel’s constitutional law will only further energize Israeli law enforcement authorities’ dangerous claim that they, rather than the voting public, are the “gatekeepers” with the final say on whom to admit to the halls of power.

Formalizing an Attorney General veto power over Prime Ministers and opposition leaders will harm Israeli citizens’ ability to freely elect their leaders, and sacrifice basic human rights like the presumption of innocence. Worse, in the wake of a lengthy list of political prosecutions that has already produced a severe crisis of public faith, it will increase incentives for new politically motivated criminal prosecutions of elected officials. Polling shows that the vast majority of Israelis now distrust the courts, police and prosecutors.

Meanwhile, the Attorney General and his band of legal Janissaries are rapidly replacing the messy political decision-making of Israel’s democracy on every other issue with the unaccountable and Kafka-esque rule of legal bureaucrats.

Term limits on Prime Ministers are less obviously destructive of democracy than aggrandizing the already too-powerful Attorney General, but there is a reason the democratic world rejects such limits in parliamentary systems. Term limits unnecessary limit the electorate’s choices and increases political instability — and Israel already suffers from unstable governments.

Unfortunately, Lapid and the rest of his anyone-but-Netanyahu coalition care little for Israel’s governing institutions and the health of its democracy. They view the law as little more than a fig leaf for their narrow political desire — legislating an end-run around the public and elections. They see no problem in legislating personalized punishment for individual political enemies.

Meanwhile, those who hope that white knights in the form of Israel’s Supreme Court will rescue Israel’s democracy from Lapid’s proposed constitutional vandalism will be disappointed. Just days ago, Israel’s Supreme Court invented a new judicial power to nullify constitutional legislation on the grounds of “constitutional misuse.” Under the new doctrine, previously unknown in the democratic world, the Court granted itself the power to strike down any enacted law, including constitutional legislation, the Court pronounces to have been ill-considered and the product of political compromise. The problem, of course, is that the newly created unlimited judicial power — itself an undemocratic constitutional change that harms governing institutions — will be used to advance the judges’ ideological and institutional preferences, rather than to protect constitutional stability. The Court’s most likely response to Lapid’s proposals is some constitutional misuse of its own. Indeed, the Court has already threatened to enact some of Lapid’s desires by judicial fiat.

There may yet be time to push aside the Janissaries, quell judicial misuse of authority and restore the primacy of democratic processes. Even if adopted, the anyone-but-Netanyahu laws may not immediately destroy Israeli democracy. But surely Israel’s democracy will not long survive once-massive destructive constitutional change targeted at political rivals becomes part of the ordinary political process.

About the Author
The author is a professor at Bar Ilan University’s Faculty of Law and the University of San Diego Law School, a senior fellow at the Kohelet Policy Forum, and recently a visiting fellow at the Project on the Foundations of Private Law at Harvard Law School.
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