Israel looks very much like a democracy: It has elections, a lively press, and raucous public discourse. Israelis tend to be proud of it, especially compared to benighted regimes in the region.
But Israeli democracy is actually shockingly half-baked – and vulnerable to the current attack from within. This week, after the government turbo-charged efforts to fire Attorney-General Gali Baharav-Miara, is an excellent time to understand what’s going on.
Baharav-Miara, who snubbed the committee hearing on her dismissal Monday, is not merely the government’s legal adviser, as her misleading Hebrew title suggests. Rather she heads the legal civil service of the state – and that role is absurdly critical in Israel, due to a series of mistakes by David Ben-Gurion.
Ben-Gurion's critical mistake
Israel’s first prime minister is rightly remembered for proclaiming the Declaration of Independence on May 14, 1948. It was a stellar document that laid out a moral and legal vision that was completely best-in-its-class. It promised that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex [and] guarantee freedom of religion, conscience, language, education and culture,” promising “to work together… for the establishment of a constitution for the State of Israel.”
That promise was a great idea, because without a constitution – a legal foundation that is extremely difficult to amend – none of the wonderful principles in the declaration could in fact be ensured. But that constitution never came, even though the early legislatures had super-majorities that clamored for it.
Instead, Ben-Gurion brokered a fateful compromise with the Religious Front Party, which opposed a constitution outright. The result was the “Harari Resolution” that deferred constitutional work in favor of passing “Basic Laws” piecemeal. These were to one day be stitched together into a constitution. That day never came.
Why did Ben-Gurion fold? Some believe he either feared or respected the religious minority, but the more likely story is that he despised his fellow socialists in competing leftist parties, and had no interest in empowering them through an inclusive process. He also had little time for the small Herut faction on the Right. This worked for him in the short term but set Israel on a course that has it currently spinning off the rails.
Seventy-seven years after Israel’s founding, it suffers a grievously brittle democracy. Yes, it has free and fair elections, but in a democracy, the elected government must be checked. It cannot just shut down a newspaper, or shoot people in the street, or cancel the next planned election. And Israel has only a small fraction of the various tools that democracies deploy to prevent falling into being an elected dictatorship.
Necessary tools for a democracy
Here’s the list:
• A written, entrenched constitution: Obviously, it does not exist. You think the Basic Laws are a substitute? In Israel, a Basic Law can be amended by a single vote in the Knesset – 1-0. It is an almost meaningless joke.
• Term limits for executive power: Do not exist. Prime ministers and ministers can serve indefinitely.
• Regional or district-based elections, to make legislators accountable to voters and freed from party bosses, preventing parliamentary control by the governing party: Do not exist. Israel has a proportional representation parliament distributed in accordance with national lists with no voter accountability. Parties that hold “primaries” are choosing candidates by a party machine of a few thousand people.
• Separation of religion and state, to prevent religion being used to limit freedoms: Does not exist. Religious authorities control personal status and much more. Marriage between a Jew and a non-Jew is therefore not allowed, gender segregation in public is not forbidden, commerce and transport on the Sabbath is vastly impeded, and various religion-based restrictions can be imposed through local authorities.
• A bicameral legislature or internal parliamentary check: Does not exist. The Knesset is unicameral and easily controlled by the majority.
• Entrenched protections for human and minority rights: Somewhat exist. These appear in Basic Laws that can be easily overturned and in practice are sometimes ignored on the basis of “security needs,” because…
• Checks on emergency powers: Do not exist. Emergency laws from the British Mandate era still allow sweeping executive power. Of course, Israel’s dire security situation can make this seem reasonable; only the naïve can’t see how it can be abused.
• Decentralized local and regional powers: Somewhat exist. Municipalities can do some things – Tel Aviv runs some buses on the Sabbath, mercifully – but they are in some ways centrally controlled and most of them, certainly the poorer ones, are financially dependent on the central government.
• Subordination to external legal frameworks: Barely exists. Israel participates in global institutions but rejects any concept of legal constraints such as those faced by, say, member states of the European Union.
Democracy under attack
Two critical elements do exist: A free press with media pluralism, and an active civil society and NGOs. But these are not actually protected from assault by the government or parliament, because of the absence of any actual entrenched protections.
The only true protection that the citizens enjoy comes from some degree of separation of powers. Despite the Knesset’s sorry record as a check on power, the judiciary has been independent, essentially by convention, and the country has had a strong civil service with powerful gatekeepers who traditionally have been fronted by the attorney-general.
Are you starting to see the picture? What do you think will happen when a premier will want to be more like Putin? That’s right! They will go after the Supreme Court and the attorney-general. So it becomes obvious why Baharav-Miara, a champion of liberal democracy, is targeted – and why the government feverishly pursues efforts to control the judiciary by directly controlling the appointment of judges and granting parliament the right to overturn court decisions.
Prime Minister Benjamin Netanyahu’s allies are not incorrect to state that these targets are unusually impactful in Israel. But it is critical to preserve them as is, because they are quite literally the only structures preventing the government from acting as an elected dictatorship.
The government, of course, argues that its every whim is an extension of the will of the people. Populist autocrats generally argue that, if they can gin up an election win one time. They will suggest that giving them sweeping powers if anything is the purest form of democracy, since they were elected. Most will abuse such powers, and you can be sure that a government as corrupt and cynical as this one will do so with relish and abandon.
In the coming years, this country faces a major internal fight, and it would be a mistake for outsiders to consider the disagreements minor or procedural. Defenders of Israel’s democracy may conceivably agree to “reforms” weakening these two institutions – but only if the rest of the landscape is considerably cleaned up. And that’s not in the cards.
So it should be quite clear: Israel is a highly functioning but deeply and dangerously flawed democracy that needs a constitution. Instead, the government labors to turn it into a Jewish version of Turkey, and eventually Russia and Iran. If it should succeed, God forbid, it will enact a fake constitution – all despotisms do.
The writer is a former chief editor of the Associated Press in Europe, Africa, and the Middle East; a former chairman of the Foreign Press Association in Jerusalem; and an author of two books about Israel. Follow his newsletter “Ask Questions Later” at danperry.substack.com.