The chief argument advanced by Simcha Rothman, the chair of the Knesset’s constitution committee, to justify the proposed reform of the judicial system is that the public has expressed support for it in the last election and this is the essence of democracy: if the people aren’t happy, they can always replace the government and its policies when elections roll around again. This may be a reasonable argument in the case of routine changes in policy.
But when it comes to the regime change being promoted by Prime Minister Benjamin Netanyahu, Rothman and Justice minister Yariv Levin, this assertion is akin to throwing sand in the public’s eyes. If their legislation is enacted, the opposition will not return to power at any time in the foreseeable future, if ever.
Netanyahu’s rule will be perpetuated for years to come but not because Levin’s plan will suddenly gain popularity. The opposite is true: A government that effectively hamstrings the judicial system and concentrates all authority in its own hands will not simply hand over this unlimited power to Yair Lapid, Benny Gantz or any other of its political rivals. It can’t afford to.
How do we know this? Research on the collapse of democracy in various countries demonstrates this very point. When there are no checks on the executive branch, it has at its disposal endless tricks to shape and distort the political arena in a way that guarantees its control, even if elections continue to be held. This is precisely what has happened in the sister countries that Netanyahu and his partners see as models for emulation.
Take Hungary, for example, a country that in recent years has taught us how to overturn democracy and that has become a pilgrimage destination for Netanyahu loyalists. After a bitter defeat and several years in the opposition, Viktor Orban returned to the prime minister’s seat in 2010 and seemingly decided that losing power again was not an option. To guarantee his continued rule, he rewrote the constitution, halved the size of parliament and redrew the electoral districts in a way that heavily favored his Fidesz party.
And so, despite losing almost half a million votes in the subsequent election in a country roughly the size of Israel and winning only 45% of the ballots cast, Fidesz still won 91% of the districts. Along with delegates elected on a nationwide basis, the party secured a two-thirds majority in the parliament, which allowed it to do whatever it pleased.
Exceeding the legal limit
IN THE most recent election, Fidesz spent almost eight times as much on billboards as the other parties and far exceeded the legal limit on campaign expenditures. However, because of its control of the judges and the election commission, not only was this overspending not punished but in fact, the commission voted to impose hefty fines on its rivals and left the largest of them on the verge of bankruptcy. In other words, Orban and his party massaged the laws to guarantee their electoral dominance.
The instruction manual for destroyers of democracy states that if the courts remain free of government control, you simply change the law to remove certain decisions from their purview. In Turkey, for example, President Tayyip Erdogan abrogated the decision over which parties the law permitted to run and transferred the right to decide the matter from the courts to the legislature, where he held a majority.
To deal with the rebellious court, four years later his government enacted new legislation granting the justice minister (appointed by Erdogan) the authority to appoint the members of the judiciary council that oversees judges. Within six months, more than 3,000 judges had been removed from the bench.
Those who remained were all party appointees or those judges who toed the line. By taking these measures, the Turkish parliament and courts blocked every step by the opposition and made it extremely difficult to resist Erdogan.
The Polish government promoted remarkably similar measures. Its parliament, which is controlled by the Law and Justice Party (PiS), introduced the Judicial Disciplinary Chamber legislation that allowed it to dismiss any judge who voiced anti-government viewpoints or ruled against the party’s interests. This opened a floodgate of judge dismissals on political grounds.
The government then launched an attack on the Constitutional Court and the public broadcast channels, which it proceeded to fill with party loyalists. Since then, the Law and Justice Party has further tightened its hold on state institutions.
These examples demonstrate that when the executive branch removes the brakes operated by the courts, it can deploy so many maneuvers to cement its power that replacing it through elections becomes nearly impossible. It is no accident that ever since Orban and Erdogan (and Andrzej Duda in their footsteps) neutered the other branches of government in their countries, they have won election after election.
Note that this is not a matter of political Left or Right but something much more fundamental: If there is no real option to replace the party in power, there is no democracy.
What tricks are up their sleeves?
So, what tricks do Netanyahu, Levin and Rothman have up their sleeves? Clearly, the most important one is the idea of preventing some of the Arab parties from running for the Knesset. Doing so would reduce Arab turnout and deal a lethal blow to the opposition’s chances of winning.
Precisely what legal clause Levin and company will choose to achieve this goal isn’t really important, the implications certainly are. Recall that since 2003, the politicians on the Central Elections Committee have repeatedly disqualified Balad or Ra’am-Ta’al. Only the intervention by the High Court of Justice kept these parties on the ballot.
Other tricks that have been successfully utilized by the governments in Hungary, Poland and Turkey include imposing limits on specific types of financial contributions that would benefit rival parties, curbing state advertisements in independent media outlets thereby starving critical voices, turning public broadcasting channels into government mouthpieces and so on.
Anyone who has followed Israeli news in recent months knows that members of Netanyahu’s government (led by Shlomo Karhi and Galit Distal Atbaryan) are gearing up to do the same in Israel.
It is crucial to understand that democracies do not die only as a result of a military coup or the sudden nullification of elections. Regime changes of the sort that produced dictators in the 1990s (such as Alberto Fujimori in Peru, Alexander Lukashenko in Belarus and Frederick Chiluba in Zambia) are no longer in vogue. Instead, the current bon ton is to strengthen the executive so that it is effectively free of all restrictions.
Because this is usually achieved through ostensibly legal means – whether by exploiting a fleeting majority in parliament or by gaining control of the Supreme Court and effectively dictating its decisions – resistance to democracy-crushing measures becomes extremely difficult once the new regime is installed.
That is why the next few weeks are crucial: Israeli citizens must participate in a tenacious and uncompromising struggle because if the Netanyahu-Rothman-Levin overhaul succeeds, it will truly be the end of democracy in Israel. Not a little, not sort of but the real deal.
The writer is a senior fellow at the Israel Democracy Institute and a faculty member of Tel Aviv University.