We are on the brink of new elections in Israel. Just last month, Prime Minister Netanyahu called for his own party primaries—a move that is widely seen as a precursor to national elections. At the same time, this prime minister also killed two legislative bills that, aside from seeking to strengthen Israel’s system of checks and balances, were widely supported within his own party. This scenario begs the question: why would a sitting prime minister choose to ignore the positions of his own party in an electoral season?
First, the Knesset bills.
The first bill Netanyahu dismissed sought to impose a legal doctrine on Israel’s judicial system requiring that a party sufficiently demonstrate harm before the law in order to have its case heard. This doctrine is known as “Standing,” or locus standi, and is employed by a host of countries with democratic legal systems including the US, UK, and Canada. The purpose of this doctrine is to set limits on the types of cases that can be brought before a court. In short, this doctrine prevents parties from bringing cases against other persons or the state unless they are directly harmed by the law. In Israel, this doctrine would extend to all members of civil society including NGOs and other political actors. Supporters of this law touted it as a move to restrict the capricious nature in which judges choose to hear cases. Detractors of the bill believe that NGOs and public organizations are valuable resources in footing the legal expenses most ordinary citizens can’t afford.
According to Netanyahu, his opposition to the bill was based on upholding Israel “judicial independence.” But in fact, enacting this bill into law would have helped Israel re-orient its activist judiciary, which has consistently legislated from the bench. A clear example of this occurred in the ’90s, when Aharon Barak was able to develop and interpret Israel’s 1992 basic laws within Israel’s legal code. During Barak’s tenure, the court made a concerted effort to expand the interpretation of the recently passed Basic Laws, and loaded the court docket with highly politicized cases whose decisions could serve as precedent for future high courts. The speed in which these laws took shape, gave them a quasi-“constitutional” presence within Israel’s legal doctrine. Had the standing doctrine been in place, the court would have had fewer explicitly political cases to stack the docket with, making it more difficult for the court to legislate rather then adjudicate.
The second bill, which dissolved in the Cabinet, required nominees for Israel’s Supreme Court to be vetted by a Knesset committee. This practice is also employed by the US, to create a firewall between prospective justices and those who appoint them. It is no coincidence that members of the legal community (and aspiring justices) came out against the bill. The legal elite represented by Attorney General Weinstein, immediately tried to squash the bill. At least within the public discourse, it did not appear that the legal community represented by Weinstein seriously considered the merits of this bill. After the bill was killed in the Cabinet, the Attorney General – in rather candid language at a legal conference in Eilat – said, “When the law that would institute a hearing came to my attention, I called the prime minister and told him that this bill will not pass and must be eliminated now and immediately.”
In each of these cases, the inability of parts of Israel’s governing class to comprehend notions of judicial reform, separation of powers, and checks and balances–the most basic innovations in modern political history–demand our most immediate protest. That the Knesset, which is a body of the people and the only one elected, does not play a critical role in the confirmation process of the unelected branch (judiciary) is tantamount to willful negligence. As James Madison, “father of the US constitution,” warned in the Federalist Papers: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”
Ironically, Benjamin Netanyahu’s recent political gambits—which can also be viewed as overtures to the left– are not novel given a looming election. By defeating these bills, Netanyahu showed that he is not interested in changing Israel’s political culture. He would rather govern it. Netanyahu figures that by standing above the party and by orienting it around himself rather than crafting policy according to Likud principles, he will gather broader appeal in the general election. This enormous gap, which exists between the individual citizen and the party apparatus, exposes the decayed state of Israel’s electoral system today.
Netanyahu’s abandonment of a critical conservative plank does not bode well for himself, the Likud, and Israel’s polity. By casting personality over party, the Prime Minister is effectively loosening the structure of Israel’s representative system. In order for Israel’s current electoral party system to function, it demands mass, active, and loyal membership. Given that the citizen in this system does not have the ability to vote for a specific candidate as in popular elections, he relies on party members to influence the internal party power structure. In Israel’s case, membership within parties has fallen extremely low and many members are apathetic or inactive. This scenario has led to dysfunctionality within the party system and has rendered party loyalty perfunctory, giving rise to serious consideration to moving Israel toward a more direct system of representation.
Notwithstanding this scenario, there is still an opportunity for Netanyahu. For the sake of the Likud, and his own political livelihood, Netanyahu has an interest in bolstering the party system and upholding the principles which underpin the Likud. By accepting the limitations inherent in a party system, he can assert new strengths by redefining his candidacy and remaining true to his political base without having to resort to ideological contortions. Like Galileo, who recognized Earth’s true place among the stars– that the earth revolved around the sun and not the other way around — so Netanyahu should reconcile his place in the orbit of the Likud, its members and within inside Israel’s political system
He can do this by leveraging one of the few upsides in Israel’s strong party system: the insulation of political personalities from direct criticism. The political party assumes more responsibility in decision-making and the legislative agenda than the individual. The prime minister, as head of the executive, can veto his party on occasion and can carve out the party agenda from behind closed doors, but can also maintain a level of independence when appearing to bend to the will of his party; the electorate is served, the opposition is tempered by the consensus of the other side, and Netanyahu can weather the storm by gaining more influence within the party by agreeing to compromises for its own good.
By ignoring the institutional realities which weigh on Israel’s political culture and by hoisting himself above his own party, Netanyahu has in effect made his re-election all the more difficult. By rejecting his own party platform, he has alienated his base, caused internal party strife and ignored his constituents just as he asks for their vote of confidence.
Moving forward in these upcoming primaries, the Likud has a real opportunity to unite and return a favor to Netanyahu should he reorient himself around the party. To begin with, the Likud should bring ideas back into the political debate and articulate a set of initiatives, which it will commit to if given a mandate. Once this has been initiated, party discipline should be focused around this well- defined compact. Only when the Likud as a national political party makes the necessary reforms to heal itself from Ariel Sharon’s debauchery can it prevent Netanyahu from following in his footsteps. Only when elections again matter in Israel will conservative coalitions be able to rebalance a supreme judiciary, and successfully implant a conservative legacy of checks and balances inside Israeli democracy.Ariel Harkham
About the Author: The author is co-founder of the Jewish National Initiative (www.jni.co.il).
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