Constitutional Retrogression in Israel | 5 March 2019

Originally posted at Democratic Erosion.

At the end of February, Benjamin Netanyahu drew condemnations from all over the world for a deal that would bring a Kahanist party into the Knesset if his coalition prevails in the coming elections. The inclusion of an openly genocidal party is appalling: nevertheless, Otzma Yehudit itself is less a threat to Israeli democracy than are Netanyahu’s machinations to avoid accountability for his mounting corruption scandals. While it is not clear whether Netanyahu has an ideological objection to political contestation as such, his best chance of escaping the consequences of his corruption is to engage in the tactics that lead to constitutional regression.

In addition to Prime Minister, Netanyahu holds the offices of Minister of Defense, Minister of Foreign Affairs, and Minister of Health. Until 2017, when he resigned amid scandal, he was also Minister of Communications. Two of Netanyahu’s indictments center around his attempts to influence the media: in his capacity as Minister of Communications, he was busy behind the scenes to secure favorable news coverage through political favors. The attorney general has recommended indictments against Netanyahu in three cases. As the scandal was deepening in December 2018, Netanyahu called snap elections, hoping increase his majority in the Knesset.

Unlike many of his populist allies in Europe, Netanyahu has not yet succeeded in defanging the judiciary. However, because Israel does not have a codified constitution, the barrier to institutional change in Israel is lower than in many other countries where populists have captured the state. The Declaration of the Establishment of the State of Israel required that the new state was to adopt a constitution “not later than the 1st October 1948”, but no constitution was ever drafted: instead it relies on common law and a body of statutes called the Basic Laws, originally intended as a stopgap measure until a formal constitution could be adopted. The Basic Laws on human rights, passed in 1992, are the only laws that contain a (rather weak) limitation clause: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”

At present, Netanyahu’s coalition holds only 61 of the 120 seats in the Knesset, but if he is able to assemble a larger coalition after the April 9 election, he stands at least some chance of making favorable changes to the Basic Laws. A few of the Basic Laws require a Knesset supermajority to amend, but most do not. Notably, only a simple majority in the Knesset is necessary to amend the Basic Law on government, which, among other things, sets out the procedure for removing a prime minister who has been convicted of a crime, or the Basic Law on the judiciary. Nor can the judiciary be counted on to check legislative tricks: because of the quirks of Israel’s ad-hoc foundational laws, judicial review is a matter of live political debate in Israel. The Basic Law on the judiciary is silent on the subject, and since 1995 there have been numerous attempts to amend the law to prohibit judicial review. In 1995 under Chief Justice Aharon Barak, the Supreme Court claimed the power of judicial review based on the limitation clause in the Basic Law on human rights. It is not clear whether the court believes this power extends to the rest of the Basic Laws.

To squeeze a few more Knesset seats out of the right wing, Netanyahu has persuaded Habayit HaYehudi to enter a technical bloc with Otzma Yehudit, a small Kahanist party. Otzma Yehudit is the ideological heir of Kach and Kahane Chai: it is openly genocidal, calling for the removal of all “enemies of Israel” (including all Arabs and anyone who opposes the removal of Arabs) from Israel, the West Bank, and Gaza, either by forced migration or mass killing. In 1994 after a member of Kach shot and killed twenty-nine worshippers at al-Haram al-Ibrahimi in Hebron, Kach and Kahane Chai were both classified as terrorist organizations and banned. Otzma Yehudit (Jewish Power), formed in 2012, is not proscribed by the 1994 anti-terror law.

The left-wing parties are likely to ask that Otzma Yehudit be banned under Section 7a of the Basic Law on elections. Section 7a, passed in 1984 expressly to keep Kach out of the Knesset, bans anti-system parties and parties whose purpose is to incite racism from competing in elections. In practice, implicit incitement is tolerated— in 2015 Netanyahu’s campaign used anti-Arab tropes liberally in both speeches and ads, and Likud has not been banned— but the law has been used repeatedly to exclude Kahanist parties. On the few occasions in the past when Kahanists have succeeded in entering the Knesset, they have always been boycotted by mainstream right-wing parties. Netanyahu has decided to embrace them. At best, he is engaged in pure opportunism: if HaBayit HaYehudi and Otzma Yehudit ran separately, it is likely that neither party would meet the 3.25% electoral threshhold necessary to enter the Knesset. At worst, he shares their views in private.

A bill to that would amend the Basic Law on government to protect sitting PMs from indictment is presently up before the Knesset, but it is unclear right now whether Netanyahu will be able to assemble a coalition willing to pass it. Naftali Bennett, who recently split from HaBayit HaYehudi to form his own party HaYamin Hehadash, says he will not support a version which would apply retroactively, while Tkuma’s Bezalel Smotrich says that the law is necessary to permit Netanyahu to serve if the people reelect him. All the parties in the current coalition are willing to form a government with Likud if Netanyahu prevails on April 9.