Symposium–Part 6 of 7: Is there Constitutional Capture in Israel?

[Editor’s Note: This is the sixth 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.]

—Iddo Porat, College of Law and Business, Israel

In this post I would like to suggest that part of the developments described by participants in this symposium as “constitutional capture”‘ constitute a generally legitimate democratic response by one side of the political map in Israel – the Right – to its relative weakness in several public spheres and to the growing dominance of the Left in them.

The dominance referred to is mainly in the following spheres: the legal system, the media, academia, education and civil society.  The response of the Right is not similar in all these domains, nor is there a similar dominance of the Left in all of them, and not in all of them it was achieved in similar ways. In some areas the Right’s response is more problematic than in others, in some it is less sophisticated (for instance, in the legal sphere the Minister of justice acts in a sophisticated and legitimate way, whereas in the cultural sphere the Minister of culture is much less sophisticated, and acts sometimes in illegitimate ways). However, as a whole, a political side of the map should be allowed to compete for dominance in those areas, and should not be required to leave spheres of power in the hands of the other political side.

One may respond as follows: These are not just policies by one side of the political map, rather, these are policies advanced by government. And, since these domains are a-political and are used as checks on government, it is a serious threat to democracy if government starts interfering in them.

The answer to this claim is twofold.

First, the elected government can legitimately materialize the citizens’ preferences, as reflected in its election, also in parts of these areas. Take for example the sphere of education. During their terms as ministers of education both Shulamit Allony and Yossi Sarid (of the Labor party) introduced changes in the education curriculum that represent the preferences of the Left, putting emphasis on democratic and universal perspectives rather than on Zionist and Jewish subject matters. Now Minister Bennett is doing the opposite. Furthermore, ministers of both sides of the political divide may and have used their powers to appoint to the leading positions in education, culture, and public media, persons who identified with the views of their voters, or at least were not opposed to them. Given the fact that some authority should be responsible for these appointments, and as long as the chosen persons are qualified for their positions and selected in a proper legal procedure, it is proper that the citizens’ views constitute one of the considerations for their choice. The governing power can also use its allocation power in order to represent the voters’ preferences in promoting activities of culture, education, media, civil society organizations, and more, within certain bounds.

Secondly, to the extent that arenas such as justice, academia and civil society purport to be politically neutral and free of political considerations, they should not be used as a hidden political lever by one side or another. When this happens, i.e., when a neutral facade and the pretense of being a-political is used by one side of the political map in order to gain points or achievements in the political sphere, the other side should be allowed to conduct its fight in the same arena as well; Or, alternatively, there could be a legitimate interest by the other side in regulating these arenas to prevent them from being used as a political lever. In other words, as long as, and to the extent that, these arenas undergo politicization and operate clearly in the political sphere, they should be governed by the logic of the political sphere, namely political accountability and reflection of the citizens’ preferences; and to the extent that they do not, they should be protected from being politically used. I take this to be in coherence with what Walzer writes in his Spheres of Justice.

It is my contention that the arenas mentioned above have gone through politicization in Israel (to a different extent and in different ways in each arena), and that what we currently witness are responses by the right-wing government to this in one of the two ways described: either by participating in the political struggle taking place in them, or by attempting to regulate them to prevent their politicization. In order to exemplify my claim I will address developments in two such arenas – the Court and civil society associations.

Gila Stopler, in this symposium, considers the promotion by the Minister of Justice of conservative judges in the negotiations of the Judicial Selections Committee, as reflecting  constitutional capture by the government. I consider the negotiations held between Right and Left in the last rounds of judges’ appointments a proper process of balancing and compromising between opposing political powers, in an arena that has undergone a clear process of politicization. Since the elections of judges has been politicized, as was, to an extent, the Court itself (this has been documented by many for many years now, see, e.g., Mautner, Law and the Culture of Israel (2011), Dotan and Hufnung, Legal Defeats-Political Wins (2005)) it is proper that voters’ preferences be represented in this procedure and as a result in the Court. Negotiations and political visibility, like the one that takes place in the US in the course of the judicial appointments to the American Supreme Court, are preferable to having proceedings in which the political aspect is evident to all, but not admitted to officially. In addition, and more directly related to my point, the fact that the Right has been able to effectively participate in these negotiations, as manifested by its success in the last two rounds of elections in nominating conservative judges to the Court – this after more than two decades in which no conservative judges were appointed and many liberal judges were – is a good development.

The more interesting and creative courts, to my mind, were those in which there was a fruitful confrontation between worldviews, such as the confrontation between justices Frankfurter and Black in the US during the nineteen fifties, or between justices Barak and Elon in Israel in the nineteen eighties. Researches of the dynamics of group decision-making, like the one summarized by Sunstein, show that organizations where there is uniformity and the view of the minority disappears – as has happened in the Israeli Supreme Court during the last two decades – are characterized by stagnation of thoughts and radicalization, because the majority aligns itself with the most extreme voice in the group. Beyond the institutional advantages of pluralism of worldviews – namely political pluralism (and not only gender, ethnic and religious pluralism, which can mask a uniformity in political worldview) – the main reason is the one I mentioned before: the more the organization itself becomes a more significant partner in the ideological decision making, i.e. the more it becomes political, the more the voters’ preferences should influence it.

I therefore regard favorably the negotiations between Right and Left on the appointments, but not so the fact that the Chief Justice of the Israeli Supreme Court, Miriam Naor, has, in effect, represented the Left in these negotiations by fighting strongly against the nomination of conservative judges, as has been done also by the previous two Chief Justices (former Chief Justice, Dorit Beinisch, strongly opposed the nomination of the conservative judge, Noam Solberg, and former Chief Justice, Aharon Barak, has strongly opposed the nomination of Prof. Ruth Gavison because of her anti-activist judicial Agenda). The open and direct participation of Chief Justices in such negotiations, the main dimensions of which are political, is in my view destructive to the Supreme Court’s stature. Taking into account that the whole procedure has undergone politicization, the judges should be taken  completely out of it, allowing the political forces to fight directly for their views without utilizing the Court, to its detriment, as a tool supporting one side.

The arena of civil society organizations and NGO’s is the second example I wish to use. Organizations such as “B’Tselem“, “Yesh Din” and “Breaking the silence” operate clearly and directly in the political field, mainly in order to influence the parameters of the solution of the Israeli-Palestinian conflict – all three operate to document human rights violations solely in the Territories and have as one of their aims the end of the Israeli occupation of the Territories. The massive financing provided to them by European countries and the EU (all three have reported having more than 50% of their donations coming from foreign governments and governmental bodies, amounting to millions of dollars for each) cannot be explained other than by acknowledging the fact that it is aimed at helping the promotion of political interests of European countries by using levers in the internal Israeli arena in order to steer the solution of the conflict in the direction they would wish to see.  European countries are probably also motivated by concerns to human rights, but this concern does not fully account for their emphasis on human rights matters that relate to the conflict and not to other human rights and social concerns in Israel. The outcome is another arena where political activity and political gains take place, but purports to be a-political, and therefore eschews political intervention. The Right too, has recently tried to imitate this method of political action, and new Right-leaning NGO’s that are clearly political, and receive most of their funding from foreign sources, have been created as a counter to those on the Left. Governmental regulation of NGO’s is a tricky business, and should be done very carefully. For sure, any governmental attempt at regulating their speech, should be strictly limited and suspected of governmental censorship. However, attempts by the Right-wing government – hitherto mainly unsuccessful – to limit funding to NGO’s by foreign governments, do not fall to my mind into the category of constitutional capture, as some in this symposium argue, but rather in the category of limiting the influence of money, including foreign money, in the political competition in Israel.

Another related example, the V-15 organization, is a clear example of using civil society, under neutral cover, in order to avoid regulation and political accountability for funding political activity. V-15 was an American funded organization that sought to replace Prime Minister Benjamin Netanyahu in the 2015 elections. It sponsored ads, organized rallies, and recruited volunteers for election day. Since it portrayed itself as a civil society organization and was not directly related to any political party, it managed to circumvent the strict restrictions on campaign finance in Israel and provided an unfair advantage to the Left side of the political divide in those elections. The legislature arose therefore justly in order to regulate this phenomenon, enacting recently the ‘V-15 law’, and I believe that the legal rulings in this case, by Supreme Court Justice Jubran, acting as the head of the Central Elections Committee, as well as by the State Comptroller – both rejecting claims against V-15 – were problematic at best.

Before summing up, I would like to point out a certain lack of symmetry that exists between Right and Left and that connects Israel with processes taking place in other places. In the last decades, at least since the nineties, Left-wing governments have had trouble translating their elective power into an effective rule on the executive level, among other reasons because of the division in the Leftist camp. As opposed to this, Rightist governments have managed better in gathering operational power for the realization of their aims. Examples are Thatcher in Britain, Reagan in the US, and Howard in Australia. However, in many countries of the world the Left compensates for its relative weakness, by preserving and increasing its dominance in non-political arenas which influence the public sphere – the media, culture, academia and in certain countries also law. A comprehensive research conducted in 2016 points out fact that in the US an absolute majority of people in the professions of media, academia and law services (in this order) hold leftist views. This phenomenon does not exist in the medical professions nor in banks, where there is a majority, though much milder, of rightists. This imbalance affects also the way each side chooses to strengthen its power and preserve it – the Right with the use of government power and the Left by preserving its control over organizations, which traditionally criticize the government. In his book Delegating Rights Protection, David Erdos states that the initiatives for Bills of Rights in the Commonwealth countries – Canada and following her New Zealand, England and Australia – all came from the Left, and, except for Canada, after an effective period of Rightist rule. He considers this a means of the Left to compensate for its inability to consolidate an effective political power by transferring power to the judiciary as a balance for its weakness. Ran Hirschl, in his influential book, Towards Juristoracy, makes similar claims documenting the rise of constitutionalism in Canada, Israel New Zealand and South Africa.

The significance of this imbalance and its documentation, go beyond the limits of this post. Governmental interventions (by the Right) are traditionally more threatening to democracy than indirect interventions, (by the Left) through the Courts, Civil Society or the media. However, the fact that political control does not result from direct acts of the government, but rather from indirect control through other spheres, does not necessarily make it unproblematic, and raises legitimate democratic concerns, as I’ve tried to show in this post.

Suggested Citation: Iddo Porat, Is there Constitutional Capture in Israel?, Int’l J. Const. L. Blog, Aug. 25, 2017, at: http://www.iconnectblog.com/2017/08/is-there-constitutional-capture-in-israel