An additional legislative layer with an oversight role made up of ordinary individuals from all walks of life with no political ambition could well be the panacea to Israel’s constitutional conundrum, Joshua Hantman writes.
ADVERTISEMENTLast week was a dark week for Israel’s democracy. The first legislative shot of a battle for Israel’s democratic future was fired officially, as the first piece of legislation of Prime Minister Benjamin Netanyahu’s judicial overhaul passed the Knesset.
The law removes one of the key tools the Supreme Court has in its arsenal to strike down legislation deemed unreasonable — such as the current government’s attempt to put a convicted financial felon in the position of finance minister.
With hundreds of thousands taking to the streets to protest for the 30th week in a row, the minister of national security — who himself was convicted of inciting racism and supporting a terrorist organization in 2008 — declared that this was “just the beginning”.
Politics of procrastination
In Israel, large-scale reforms are rare. Political survival in unstable coalitions is often accompanied by legislative bottlenecks, tactical flipflopping and incessant procrastination.
In fact, procrastination is the name of the game in Israeli politics, dating all the way back to day one.
The Declaration of Independence stated that the newly formed state must adopt a constitution “not later than 1 October 1948”. As the country marks its 75th year of independence, there is still no progress — Israel still doesn't have a written constitution — and the legal limbo is quite literally tearing the nation apart.
The current judicial reform — or "regime overhaul" to its critics — arises from a lack of clearly defined rules regarding the function and powers of Israel’s judiciary and an illiberal government who, unashamedly inspired by "successes" in Hungary and Poland, are looking to take advantage of this.
In Israel’s parliamentary democracy, the executive, or the government, automatically controls the legislature — the unicameral parliament — with a simple majority.
If Justice Minister Yariv Levin's declared plans to hamstring the courts and even grant veto power to the government over judicial appointments and judicial review are to succeed, Israel will be in a situation where a simple majority controls all three branches of power.
No checks. No balances.
Only one obstacle to the tyranny of the majority
Furthermore, unlike in many European democracies or the US, with no federalism, executive president, bicameral legislature, constituency-based accountability, or any form of binding constitutional bill of rights, Israel’s high court is the only official gatekeeper against the tyranny of the majority.
Israel, therefore, urgently needs a nationally agreed-upon constitution which lays out the role of the courts, the rights and obligations of the citizens of the state, codifies the balance of powers, and formalises its liberal democratic future.
However, the constitution-building process itself has the potential to tear the nation apart further. The "tribal" nature of Israel’s society, with such differing world views, requires an extremely careful consensus-building process.
One way to do this could be to get the politicians out of the way and establish a citizen’s assembly in both the constitution-building process and, indeed, our day-to-day politics.
Such an assembly could provide a desperately needed additional layer of oversight — not of politicians — but of normal people who want to find common ground.
The solution: Citizen's assemblies
Martin Wolf, the chief economics commentator at the Financial Times, discusses the concept in his book "The Crisis of Democratic Capitalism", as well as in a series of recent podcasts and articles.
He argues that democratic politics has become a zero-sum game of professional politicians, creating dangerous winners and disgruntled losers.
Created by lottery, “these [citizen’s] assemblies would be more representative than professional politicians can ever be.”
ADVERTISEMENTHe also notes that “it would temper the impact of political campaigning, nowadays made more distorting by the arts of advertising and the algorithms of social media.”
Indeed, elected representatives around the world are often focused purely on the game of constant campaigning to their base, with no incentive to either govern responsibly or find a compromise. In Israel, in particular, five elections in four years have exacerbated this sentiment.
And while in Israel’s one lonely but loud unicameral parliament, a multitude of sectoral parties means representation is relatively high, accountability is extremely low.
With list-based proportional representation, each "tribe" tends to have a voice, but the lack of constituencies or personal answerability on behalf of the members of parliament undermines trust in the democratic process.
Governments claim that once elected, they have a "mandate" to do as they please — a dangerous majoritarianism which, lacking checks and balances, endangers minorities and individual rights.
ADVERTISEMENTA checks-and-balances panacea
A citizen’s assembly, while unelected, could act like a jury, or even a House of Lords-style upper house, serving as an additional layer of institutional protection.
It would have to be both random and representative, perhaps created in conjunction with the President’s Office and the Central Bureau of Statistics.
This “people’s branch of the legislature”, as Wolf calls it, would be advisory in nature but “could decide to investigate particularly contentious issues or even legislation.
If it did the latter, it might ask for the legislation to be returned to the legislature for secret votes, thus reducing the control of factional party politics.
The people’s house might even have oversight of such issues as electoral redistricting or selection of judges and officials.” Another level of much-needed checks and balances.
ADVERTISEMENTImportantly for the Israel case, it could even serve as a constituent assembly, working with legal experts from all sides and building on the Declaration of Independence to help finally formulate Israel’s constitution. A constitution which would both clarify and codify the toolbox and authority of a truly independent supreme court.
An additional legislative layer, with an oversight role, made up of ordinary individuals from all walks of life, with no political ambition, who do not have to raise funds to campaign and therefore are not at the whims of special interests or lobbyists, that neither win nor lose — this could well be the panacea to Israel’s constitutional conundrum.
Joshua Hantman is a partner at Number 10 Strategies LLP and a former advisor to Israel’s Minister of Defence and Ambassador to Washington.
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