2048 המדינה הייחודית
מאת מייקל אורן​


The Democratic State

Just over thirty years ago, at the time of the fall of Soviet Bloc, the conventional wisdom was that in the great struggle between Communism and liberal democracy, the latter had decisively won. Now that is not at all certain. Authoritarian governments and dictatorial-democratic hybrids often appear better equipped to manage the vicissitudes of human affairs and natural disasters, while appealing to popular emotions. This is true in countries across the world where liberal democracies increasingly find themselves on the defensive and the assumptions of 1989 no longer hold.

In Israel, too, democracy has been shaken by political assaults against its judicial and legislative pillars. Such attacks are especially jarring to a democratic system which, historically, rests on weak foundations. Unlike the governments of Great Britain or the United States, the products of 800 years of democratic thought, democracy in Israel was creation ex nihilo, arising from virtually nothing. Except for the relatively small number of immigrants from English-speaking countries and Western Europe, most Israelis came from Middle Eastern and Eastern European backgrounds devoid of democratic traditions. And while Jewish history contains pro-democratic institutions from the Sanhedrin to the communal Kehillot, Orthodoxy has long fallen under Rabbinic authoritarianism. Less than an enlightened virtue, democracy began in pre-state Israel as a political imperative, the only way that an ideologically factious community could unite around national goals. Not a spur, but a harness.

And yet, over the decades, democracy has taken root, surviving wars and crises that have overwhelmed even the most mature republics. Voter participation levels in Israel, even during the serial elections of 2019-20, are among the world’s highest, and with more NGO’s per capita than any other country, the civil society is vibrant. In the Knesset, I participated in hearings that would have been unthinkable in the U.S. Congress—on homophobia in the healthcare system, for example, or the need to sensitize teenagers to transsexuality. The respectable room right next to my office was the f mosque.

But I also heard relentless Right and Left-wing members accuse one another of threatening Israeli democracy and the Supreme Court condemned for allegedly mounting a coup. At this writing, hundreds of thousands of demonstrators have protested the prime minister’s alleged anti-democratic rule while equal numbers have defended him against what they see as a police and judiciary putsch. To listen to Israel’s flagrantly free press or sit in its elected parliament is to hear how the democratic limb it rests on is daily being sawed.

One is also exposed to a glaring lack of knowledge of how democracies work. Claims that a law ousting Knesset Members guilty of treason or establishing Hebrew as the national language were undemocratic were demonstrably false (see the U.S. Constitution, Article I, Section 5, Clause 2 and Congressional proponents of the English Language Unity Act). Also untrue was the insistence that the state was democratically bound to support the arts and especially those hyperbolically critical of the state. Few Knesset Members seemed to understand that democracy is not an abstract concept but a concrete system grounded in a basic loyalty. Not a few failed to grasp the adage attributed to Abraham Lincoln that “democracy is not a suicide pact.”

Nevertheless, however shallow or misunderstood, democracy is one of Israel’s towering achievements. Despite near-constant upheavals and the presence of large and respected armed forces, not once, even briefly, has that democracy collapsed. Knesset passes more pieces of legislation than virtually any other parliament in the world. It is exceedingly accessible to the public, its sessions televised round-the-clock, and its halls crowded with visitors of all ages. Still, no less than in the state’s formative period, democracy in Israel remains a strategic necessity. It generates space for irreconcilable factions to loudly air their grievances and even to cooperate, reaching across multiple aisles. It creates shared ideals with powerful allies, above all, the United States. Democracy is Israel’s secret weapon for unifying a headstrong, irascible nation and rallying it to our defense.

But, like any other democratic system, Israel’s is deeply flawed. Its score on the Freedom House rating is a mere 76/100, far from Sweden and Norway’s 100 and on a par with Namibia and Brazil. On civil liberties, it numbers 43 out of 60, alongside Hungary and Serbia. Israel’s ranking is lowered by its security needs and its complicated relationship with the Palestinians, but even without those impediments, Israeli democracy suffers from several structural defects.

The first relates to the longevity or, rather, the lack of it, of Israel’s governing bodies. Since 1948, Israel has had 23 Knessets and 34 governments, almost none of them lasting their allotted four years. The system is expensive—elections cost an estimated NIS4b—and destabilizing, but also counter to effective governance. Speaking from experience, it takes years for a Knesset Member to begin to understand legislative politics. This was reasonable in the past when roughly a quarter of the Knesset Members were replaced with each election, but today it is closer to one-half. It is the equivalent of sending sixty out of 120 soldiers into combat without a day’s training. The election and fall of two Knessets in 2019-2020 underscored the need for electoral reform erecting formidable obstacles to snap elections. Similar provisions will raise the threshold of votes, currently 3.2%, necessary to win a single Knesset seat. This will reduce the number of small parties and, with them, the undignified horse-trading that precedes each coalition.

Inversely, as Israel extends the terms of its governments and Knessets, it must limit those of the sitting prime minister. As George Washington and the framers of the twenty-second Amendment, recognized, political leaders who remain too long in power are likely to accrue too much of it. They will not make the hard decisions that only a leader not facing elections can take. A counter argument holds that, just as a patient would choose a brain surgeon with fifteen years’ experience over one that had none, so, too, would citizens who care for their families’ safety prefer a seasoned leader to a political rookie. While there is logic to this argument, one must also resist the urge to qualify democracy with expediency. Yes, there is a risk in limiting a prime minister to two four-year terms, but a greater strategic danger in a prime minister who weakens democracy by serving interminably.

Reforms must also address the way all Israeli officials, the prime minister as well, are elected. Instead of the current practice of voting for lists of candidates, some chosen through primaries and others by their party’s head, Israeli voters must be able to vote for all the candidates individually, as in Great Britain. The Prime Minister would also be elected directly, as in late 1990s, but this time along with all ministers and Knesset Members. A more comprehensive reform, and one that is frequently championed by NGOs, calls for the creation of a bicameral Knesset, with half of its members selected from nation-wide lists and the other elected by districts. Again, this is closer to the British system in which citizens have recourse to representatives of their national party as well their local MP.

The deepest and most critical reform, though, must be of the separation of powers. In contrast to the American system of co-equal branches of government, each acting to check and balance the others, the Israeli system is awry. Rather than serving as a counterweight to the government, the Knesset only passes legislation approved by or originating with the government, and votes en block for laws determined in advance by the coalition agreement. A recent bill relating to the Corona crisis even allowed the government to enact legislation unilaterally, bypassing the Knesset entirely. So might begin the slippery slope to autocratic rule.

The situation is both dangerous and absurd. Before entering the Knesset plenum each week, I was told exactly how to vote and what disciplinary action—suspension from committees, for example—I would suffer it I didn’t. In this sense, being a Knesset Member required no skills other than the ability to distinguish the green “Yes” square on the computer screen from a the red “No,” and to maintain an extended finger. More demeaning was the chronic lack of Knesset Members who are not ministers or deputy ministers, neither of whom can belong to committees. Before becoming a deputy myself, I joined other back benchers in dashing from committee to committee, clueless as to their names and issues, and being instructed how to vote as I ran.

To end this sham, the Knesset must achieve a large degree of independence from the government. Since the latter derives its power from the former, the reform can only be achieved by direct elections for all and for the full enactment of the “Norwegian laws” that allow ministers to resign from the Knesset and concentrate on their ministries. Legislation must be passed that protects parliamentarians who vote with their conscience from party or government sanctions. The Knesset must be able to stand up to and at times overrule the government, rather than merely rubberstamping it.

All the reforms I’ve recommended, including those relating to the judiciary, could be enshrined in an Israeli constitution. That has been the position of many of my academic colleagues who long ago concluded that the current system of Basic Laws, similar to Great Britain’s, no longer meets Israel’s kaleidoscopic needs. I have strongly objected to this idea and still do today.

Israeli democracy survives, I argued, precisely because no such constitution exists. The requisites of a society so diverse, so politically, religiously and ethnically at odds, can only be addressed through the incremental basic laws. I once likened the situation to the jeep I drove in the army, always over bumpy terrain. If the tire bolts were over-torqued, I recalled, the axles would break. So it is in Israel where a rigid constitution would not have the suppleness necessary to cover our jagged political landscape. For example, any constitution mandating all Israeli schools to fly the Magen David would be met with widespread resistance, even violence. While in order to survive, Israel must apply its laws to all its citizens, it must also do so intelligently and sensitively—with a “legal jeep,” as it were, tough enough to traverse all territories but with wheels rolling flexibly.

Democracy in Israel is vital to our defense, our social coherence, and resilience. But it is also a hallowed value. While the debate still rages whether the state should be more democratic and Jewish or vice-versa, I have always held that a Jewish state must, by definition, be democratic. That the same democratic ideals—curbs on absolute power, caring for the weak and the poor, the pursuit of justice—which America’s Founders transplanted from the Bible sprouted from our national soil. By 2048, those roots should be deeper and stronger still. The question is not whether Israel should be a democratic or a Jewish state but rather how can it become more of both.

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