Special Symposium–Part 2 of 7: Constitutional Capture in Israel

[Editor’s Note: This is the second of 7 parts in our I-CONnect/ICON-S-IL symposium on the subject of “Constitutional Capture in Israel?” The introduction to the symposium is available here.]

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—Gila Stopler, College of Law and Business, Israel

In recent years the term Constitutional Capture has been used by Jan Werner Muller and others to describe a pattern of constitutional, legal and political developments of a similar nature that have been taking place in different countries.[1] Constitutional capture is not limited to an increase in violations of human rights or to the spread of governmental corruption. It is a far more extensive phenomenon that includes a systematic and intentional weakening of the checks and balances entrenched in the constitutional system, in order to strengthen the existing regime and impede the possibility of a genuine change of government.

Constitutional capture is achieved through an incremental yet systematic disregard by those in power for the basic constraints that are intended to apply to any governing power in a constitutional democracy. Intentional and incremental steps are taken by the government in order to dismantle or at least distort the various checks on its power and to subordinate all the democratic watchdogs, both those internal to the system and those external to it, to the government’s own interests. These watchdogs include, among others, the constitution, the legal system, the attorney general, the police, the public service, and the regulatory system, as well as the political culture and civil society institutions such as human rights organizations, the press, and the arts and culture. Populism, incitement and demonization are used against any institution, person or group that attempts to oppose the government or constrain its grab for power.

A central characteristic of constitutional capture that makes confronting it more difficult is the gradual and almost furtive way in which it initially progresses. Neither of the measures taken to lay the groundwork for the capture is unequivocally unconstitutional. Some of these measures could even count as legitimate and reasonable when examined individually. The process moves forward incrementally over a considerable period of time and each step prepares the ground, both legally and politically, for subsequent steps. Allegedly, it could be argued that constitutional capture is a contradiction in terms, since if the capture is illegitimate then it cannot be considered constitutional, and if it is indeed constitutional then it cannot be considered illegitimate. However, such an argument relies on a definition of constitutionalism that equates it only with liberal democratic constitutionalism, while disregarding other models of constitutionalism, such as authoritarian or illiberal models in which the government, although committed to acting under a constitution, is not committed to pursuing liberal-democratic values.[2] Thus, the process of constitutional capture means that the government takes incremental steps, within existing constitutional limitations or with moderate deviations from them in order to gradually change the constitutional structure of the state from a liberal democratic into an authoritarian or illiberal one. Hence, the core of the problem lies in the withdrawal from liberal democratic principles and not necessarily from the idea of constitutionalism in the broad sense.[3]

At the culmination of this process, if it is successful, liberal democratic constitutionalism is emptied of its substantive content and the constitution serves as a basis for the operation of an authoritarian/illiberal regime, in which periodic elections serve merely as a fig leaf. Hungary, Poland, Turkey and Venezuela are recent examples for a successful constitutional capture. Constitutional experts observe that even strong and stable constitutional democracies may be in danger of constitutional capture and the United States under Trump is seen a prominent example of a stable democracy which may be going through the initial stages of such a process.[4]

Turning to Israel, I want to claim that like the US, but considerably more so, Israel is in the developing stages of constitutional capture. While the capture is far from completed, and hopefully never will be, its direction is clear. It is impossible to detail in this short post all the incremental legislative and political measures that have been taken in recent years as part of this process in order to systematically attack and weaken democratic checks and balances.[5] I will therefore restrict myself to a few central examples: In terms of actions meant to deter and damage the democratic watchdogs in civil society one can point to a multitude of regulatory measures by the minister of Culture Regev, the Minister of Education Bennet, and Prime Minister Netanyahu in his role as Minister of Communications, that are meant to curb the free speech of artists and cultural institutions, of Academia and the education system and of the Press respectively.[6] Other measures are aimed at discrediting human rights organizations and marking them as unpatriotic and illegitimate (especially, but by all means not exclusively, organizations working to end the occupation such as Betzelem and Breaking the Silence). A prominent example for such a measure is the law known as the NGO Law, which sets special reporting requirements on NGOs that receive most of their funding from foreign governments, almost all of which are human rights organizations.[7]

As for actions against state organs, some of the more important developments in this regard are the legislation, proposed legislation and political moves aimed at curbing and weakening the power of the Israeli Supreme Court – such as the laws strengthening the role of politicians in the process of electing judges, and proposed laws that revoke the power of the court to declare as invalid primary legislation that violates the Israeli Basic Laws.[8] Similarly important are initiatives to restrict the independence of the civil service, such as an initiative to compel the Attorney General to represent the government’s position even where he deems it unconstitutional (which was proposed following the AG’s refusal to defend the constitutionality of the Expropriation Law before the Supreme Court),[9]  an initiative to allow government ministers more power in the appointment of each Ministry’s legal advisor, and an initiative to expand the ability of ministers to make personal political appointments to public service positions.[10]

Moreover, a crucial aspect of the transfer of power from other state organs to the hands of the government, which is evident in Israel, is the complete capture of the Israeli parliament, the Knesset, by the government, that has in effect turned the Knesset into a rubber stamp for the government’s positions and initiatives. This was achieved by Coalition agreements which require all Knesset members that are part of the governing coalition to vote on legislation according to the position dictated by a special committee of ministers that determines the government’s position on all proposed legislation. Thus, no legislation can pass in the Knesset unless it is first approved by the government, leaving the Knesset and the Opposition with no real legislative function.[11] Furthermore, the votes of the members of the Committee of Ministers on Legislation that determine the fate of all proposed laws are kept confidential, in direct contravention of the rules of democratic accountability, and the public cannot even know which ministers are responsible for the rejection or affirmation of any proposed legislation.[12]

Another example of a measure to weaken the Opposition is the Suspension Law, which enables a special majority of Knesset members to suspend a Knesset member for engaging in what they deem as incitement to violence or support for terror. This law in effect enables the majority of Knesset members to silence minority Knesset members on the basis of their political views.[13] The chilling effects of this legislation, which is theoretically only to be used in extreme circumstances, are felt mostly by Arab members of the Knesset. But government ministers and coalition Knesset members continuously try to weaken and silence all opposition in the Knesset by characterizing any action by the Opposition as anti-patriotic and dangerous to Israel’s well-being.

The above mentioned developments seem to indicate that Israel is in the midst of an intentional legislative and political process which aims to weaken and circumvent democratic checks and balances and liberal-democratic principles, in order to facilitate a process of constitutional capture. The fact that a country is undergoing a process of constitutional capture does not mean that the process will be successful, and each case must be examined carefully, factually and over time. Nevertheless, I wish to conclude by claiming that Israel is particularly susceptible to a successful completion of this type of process for two interrelated structural reasons.[14] First, Israel is a deeply divided society in which distinctive groups that are deeply divided over questions of the common good coexist uncomfortably.[15] The danger to democratic stability in deeply divided societies is particularly high.[16] The second and related reason is that Israel is not a country that is characterized by a strong and unquestionable commitment to liberal democratic constitutionalism. Israeli constitutionalism is of a type I call Semi-Liberal Constitutionalism.[17] A semi-liberal constitutionalism is a form of constitutionalism that is not unequivocally committed to liberal democratic principles; rather it professes to strike a balance between such principles and conflicting values, interests and circumstances through a constitutional structure that expresses a combination of liberal and illiberal elements. I consider Israeli constitutionalism to be semi-liberal because of three significant aspects within the Israeli legal system that are marked with illiberality: Israel’s continued occupation of the territories it has occupied in the 1967 war, some facets of Israel’s treatment of its Arab citizens, and some features of religion state relations in Israel. While these aspects vary in the extent of their deviation from liberal democratic principles, they all contribute jointly to a serious weakening of both the liberal democratic foundations of Israel’s constitutional system, and the Israeli public’s commitment to liberal democratic principles. This qualified commitment to liberal democratic principles facilitates the process of constitutional capture and serves as a convenient setting for it. Absent a real constitutional and social commitment to liberal democratic principles of equality and individual freedom, and given the deep divisions between the different groups that form Israeli society, the incentive of the governing group to change the rules of the game in ways that would ensure their continued control of the state increases.[18]

Suggested Citation: Gila Stopler, Constitutional Capture in Israel, Int’l J. Const. L. Blog, Aug. 21, 2017, at: http://www.iconnectblog.com/2017/08/constitutional-capture-israel

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[1] Jan Werner Muller, Rising to the Challenge of Constitutional Capture, Eurozine (2014). Other terms coined to describe similar phenomena are Democratic Decay – Tom Gerald Daly, Enough Complacency: Fighting Democratic Decay in 2017, Int’l J. Const. L. Blog, Jan. 10, 2017, Constitutional Retrogression – Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy, UCLA Law Review, Vol. 65, 2018 (forthcoming), and Constitutional Rot – Balkin, Jack M., Constitutional Rot and Constitutional Crisis (May 15, 2017). Maryland Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2993320)

[2] Mark Tushnet, Varieties of Constitutionalism, ICON 14 (2016) 1-5

[3] See e.g. The definition of constitutionalism in the Stanford Encyclopedia of Philosophy: ”Constitutionalism is the idea … that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.”

[4] See Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy, supra note 1, and Balkin, Jack M., Constitutional Rot and Constitutional Crisis supra note 1.

[5] For a more detailed overview of the anti-democratic legislation and proposed legislation that has been initiated in the Knesset (Israeli parliament) in recent years, some of which will be discussed in this post, see Overview of Anti-Democratic Legislation in the 20th Knesset (Association for Civil Rights in Israel, updated June 2017)

[6] E.g., Or Kashti, Proposed ethics code is Bennet’s attempt to stifle debate (Haaretz, Jun 11 2017), The Culture Minister never rests. Neither do we (Association for Civil Rights in Israel, May 18 2017)

[7] See English Summary of the NGO Law (Association for Civil Rights in Israel) . Recently P.M Netaniahu has stated that the current law is too weak and that he will propose legislation that completely bans NGO’s from receiving funding from foreign governments – Chaim Levinson, Netanyahu Seeks to Clamp Down on Human-rights Groups and Bar Funding From Foreign States (Haaretz, Jun 11 2017)

[8] See e.g. Haaretz editorial, Israel’s Anti-constitutional Revolution (Jul 9 2017)

[9] On the Expropriation law see ACRI, Peace Now and Yesh Din Petition the High Court against the Expropriation Law (Association for Civil Rights in Israel, Mar 5 2017)

[10] See e.g. Zvi Zrahiya, Greatly Expanding Minister’s Powers, Panel Approves More Political Appointments (Haaretz, Mar 27, 2017)

[11] In the previous Knesset only 12 out of hundreds of proposed laws passed without first being approved by the Ministers Committee on Legislation. The committee decided not to discuss these particular laws since they were mostly procedural laws relating the internal operation of the Knesset. Data provided in a report by the NGO “The Social Guard” (in Hebrew)

[12] A petition demanding disclosure of the votes by the members of the committee was filed to the Israeli Supreme Court in March 2017 (in Hebrew)

[13] For an overview of the Bill see Knesset vote today on MK Expulsion Bill (Association for Civil Rights in Israel, Jul 19 2016)

[14] A third, and no less important, temporal reason are the extensive

[15] The deep divisions are not only those between Jews and Arabs and include deep religious divisions within the Jewish majority

[16] Samuel Issacharoff, Constitutionalism in the Time of Fragile Democracies (2015)

[17] Although by international standards such as the Freedom House Report Israel is considered a free liberal democratic country with an aggregate score of 80 out of a hundred and a freedom rating of 1.5 out of 7 (where 1 is the most free and 7 is the least).

[18] An important temporal development which further increases this incentive and should not be overlooked are the extensive corruption investigations currently being held against P.M, Netaniahu, whose reaction has been to repeatedly accuse his political opponents, the media and law enforcement bodies of illegitimately trying to overthrow the government by generating false accusations against him.