The erosion of Israel’s democracy

Israel is currently in a democratic upheaval. Attempts to confer immunity from prosecution on the prime minister through a series of proposed bills have finally unleashed a pushback that goes well beyond the specifics of each suggested law or the boundaries of the official opposition that poured into the streets on Saturday evening. The present crisis is, truly, all encompassing. It is also not new. What is taking place today is the culmination of a systematic political process that has been unfolding for over a decade. Promoted by successively broader legislative and popular initiatives, this dynamic has already chipped away at the institutional and normative foundations of Israel’s democracy. If not halted now, it threatens to destroy its entire being.

The politics of democratic slippage has followed a clear plan. Its strategy has been one of obfuscation aimed at incrementally undermining individual liberties, minority rights, institutional checks and balances, governmental accountability, the rule of law and — ultimately — adherence to democratic norms. Its tactics have relied on a mixture of confusion and diversion, resulting in the adoption of increasingly anti-democratic laws that have, through the use of seemingly democratic means, progressively confined Israel’s formal as well as liberal democracy. It is this design to end Israel’s democracy with a whimper that is now, finally, being challenged.

The strategy of democratic erosion via legislation and its public ramifications was initiated in 2009, with the return of Benjamin Netanyahu to the Prime Minister’s Office after a ten-year hiatus. The 18^th Knesset (2009-2013) commenced a broad anti-democratic legislative offensive consisting of a series of bills which, when taken together, would seriously harm Israel’s democratic fabric. One group of proposed laws contained measures intended to constrain the principle of equality, especially as this relates to the status of Israel’s Arab citizens. The law which enables communal settlements to reject applicants who “do not conform to their social fabric” was enacted at this time. Much more significantly, the first drafts of “The Basic-Law: Israel — the Nation State of the Jewish People,” “The Muezzin Law” and various loyalty laws were also originally tabled during these years.

A second set of bills targeted civil rights — and especially freedom of speech, of association and of protest. Two laws passed at this time — the law outlawing a call for a boycott on Israel or “or any of the territories under its control” and the law prohibiting marking Israel’s independence as the Palestinian “Naqba” — substantially constricted freedom of speech. In addition, a set of initiatives sought to curtail progressive NGOs — especially human rights organizations — by imposing restrictions on their funding and accreditation. A third objective of these moves were of a personal sort: they set out to prevent particular individuals (especially at the time Yair Lapid) from running for office.

While the first three series of laws dealt primarily with the process of gatekeeping, the fourth and final group was devoted to the gatekeepers, with special attention given to the judiciary and its independence. Bills were introduced to limit the power of the High Court to review decisions in certain fields, to accept petitions from particular litigators, and even to abrogate the process of judicial review in its entirety through the adoption of an override clause. Additional proposals were made to alter the nomination process of justices to the High Court and to increase control over its composition. Together with the initiatives in other areas, these bills laid the groundwork for a comprehensive reform in Israel’s democratic infrastructure.

Tellingly, only a handful of these proposals passed the mandatory three readings required to make them into law at the time. Most prominent were those affecting the more outspoken critics of the ruling coalition (certain NGOs, member of Israel’s Arab community). Other — often particularly pernicious — suggestions remained declaratory at that stage. But they adversely affected the public atmosphere and had a broad deterrent effect. Thus, subtly yet extremely effectively, disagreement with the political positions of opponents served to enable erosion of democratic principles.

This strategy of lulling opponents into inaction while discrediting those who dare to raise their voices against government policies continued during the 19th Knesset (2013-2015) as well. All the anti-democratic legislation which did not pass in the preceding Knesset was reintroduced and new proposals were raised. Most prominent were efforts to curtail freedom of the press — another crucial democratic gatekeeper — and to further limit dissent. These measures were backed by an official discourse that cast suspicion not only on minorities and political critics, but also on “the Left” in its entirety.

These anti-democratic efforts reached a crescendo in the 20th Knesset (2015-2019), which passed a record number of illiberal laws and proposed a host of others in virtually every sphere of democratic life. Of note are several bills that sought to cement the tyranny of the majority at the expense of freedom of thought, expression and the legitimacy of diversity of opinion and action, including — but hardly limited to — an amendment to the “NGO Transparency Law” required recipients of funding from “foreign governmental entities” to note their sources in all publications; curtailment of the political activities of non-party bodies (“The V-15 Law”); an amendment to the “Basic Law: the Knesset” enabling Israel’s parliament to suspend one of its members if that person encourages terrorism or incitement to violence; an amendment to the “National Service Law” prohibiting service in organizations receiving the majority of their funding from foreign governmental sources; and the “Breaking the Silence” bill that denies progressive NGOs entry to educational institutions. By far the most notable (and controversial) was the Nation-State Bill, which directly challenges the principle of equality embedded in Israel’s foundational documents.

Now the incoming Knesset is reviving additional proposals and introducing new ones directly related to protecting Netanyahu from prosecution during his tenure. These include a change in the “Immunity Law” of Members of the Knesset, the adoption of an expanded override clause enabling the Knesset to bypass High Court rulings declaring laws or administrative actions as unconstitutional, and further steps to tamper with the composition and powers of the judiciary. What differentiates these measures from their predecessors is that they barter the personal protection of the prime minister in exchange for political portfolios and specific agendas and that in the process they sacrifice the very heart of institutional checks and balances and separation of powers that are the pillars of democratic regimes.

The success of the present, rather belated, backlash to a decade of anti-democratic laws and policies depends not only on countering the purposeful slippage strategy informing past actions, but also on refusing to succumb to its tactics. Two methods have been employed in the past to facilitate the adoption of anti-democratic bills. The first has been to offer a variety of legislative instruments on the same topic and then to promote what appears to be the mildest — thus giving opponents the sense that they have prevailed. In today’s language, proposing a change in the immunity law is meant to divert attention from the far more technical but unquestionably more destructive expanded override bill, while understanding full well that the personal purpose driving these initiatives can be achieved by either of these means.

The second tactic has been to introduce the proverbial goat: to propose the most radical version of a bill in order to allow for revisions and thus increase the possibility of passage, even though the original intent is always maintained. This method first became apparent with the NGO transparency bill and has been repeated in virtually every anti-democratic measure since, most recently in “The Nation-State Bill.” Any further problematic legislation will attempt to blind opponents in a similar manner.

Israel’s democratic decline, which began slowly and almost unnoticeably, is gathering momentum and may be on the verge of a precipitous freefall. The polarization that has characterized Israel’s political landscape in recent years, coupled with growing social tensions, economic inequality and physical insecurity, have combined, under the guise of promoting the popular will, to enable the distortion of Israel’s democratic system as a whole.

A steadfast stance against any further erosion of Israel’s democratic framework, one which takes into account the politics that have facilitated this slippage, may still stop its complete collapse. It will take more time and a good deal of work to rectify the damage already wrought by 10 years of numbing legislation and the intolerant atmosphere it has engendered. The wellbeing of all the citizens of the country depends on the success of this most important of Israel’s battles: the struggle for the maintenance of its democratic character.