Think About It: Anti-democratic legislation
Since the 18th Knesset (2009-2013) the liberal Center- Left in Israel has been complaining about the increase in “anti-democratic” legislation being promoted by the Right. Most of this legislation is submitted in the form of private members’ bills, with or without government support, and with the initiative occasionally actually coming from the government.
What is meant by “anti-democratic legislation”? Those who warn against the trend mean that, in one way or another, such legislation threatens to: 1) Weaken human and civil rights, by either striking a blow at certain rights guaranteed to minorities, or by striking a blow at NGOs that fight against the breach of such rights (e.g. bills trying to delegitimize such organizations, or raise difficulties regarding their funding).
2) Subordinate Israel’s democratic system to its being Jewish in the Orthodox religious sense, without securing equal rights to non-Orthodox Jews and minorities (e.g. the current version of Basic Law: Israel the State of the Jewish Nation).
3) Weaken the rule of law by weakening those assigned to protect it – be they the courts, the law enforcement agencies and the various “gatekeepers” appointed within the executive branch to ensure that it does not diverge from the law 4) Contravene international law and specific international treaties and conventions that Israel has signed over the years (e.g. the current bill proposed by Interior Minister Arye Deri and Internal Security Minister Gilad Erdan, designed to expel to Rwanda African infiltrators/job seekers/ refugees – whose legal status no one has bothered to verify – or incarcerate them indefinitely).
What those who pooh-pooh claims of anti-democratic erosion say in defense of said legislation is that legislation approved by a majority is democratic by definition, and that since the old liberal and socialist Ashkenazi elites no longer represent the majority, many of the premises upon which the Israeli system was based in the past no longer hold, and that it is perfectly legitimate to make efforts to replace these elites and at least part of what they stand for.
The problem with this argument is that democracy is not just about majority rule (which is referred to as “formal democracy”) but also includes all the factors mentioned above (which is referred to as “substantive democracy”).
Without the checks and balances an anti-democratic majority is liable to dismantle the democratic system, and given the fact that there is a growing number of MKs from the coalition benches who are not committed to democracy in its substantive sense, there is a growing threat to the democratic system, of which the so called anti-democratic legislation is but one of several manifestations.
IT SHOULD be noted that to the present most of the anti-democratic bills have not got beyond preliminary reading, and those that have finally gotten through the third reading have been significantly modified and toned down following the advice (some would say pressure) of the Knesset legal adviser and the State Attorney’s Office, and the input of opposition MKs as well as some liberal MKs from the coalition.
The democratic system hasn’t broken down yet, though it is being increasingly challenged. And especially in the case of bills being promoted by MKs David Bitan and David Amsalem, it is not just the content of the bills that is problematic, but the means used to try to push them through.
A seemingly innocent bill submitted by Amsalem, dubbed “the recommendations law,” is a good example of the type of tactics used to attempt to dodge democratic procedure to push legislation through that appears not to enjoy the support of a majority. The alleged purpose of the bill is to prevent the Israel Police from publishing its recommendations to the State Attorney’s Office in criminal cases, so that persons being investigated will not be viewed by the public as guilty before the State Attorney’s Office decides whether or not to accept these recommendations.
On the surface this bill seems innocent enough, and in itself raises few objections.
However, the urgency with which the bill has been promoted, and some of the actions taken along the way, make it obvious that the motivation is not innocent and that the bill is designed first and foremost to relieve the pressure on the prime minister resulting from his current investigations.
How do we know this to be the case? It started off with a decision initiated by coalition chairman Bitan, after the preliminary reading, to have the bill sent to the Knesset Internal Affairs and Environment Committee, headed by Amsalem (who, as mentioned above, also initiated the bill) for preparation for first reading, and not to the Constitution, Law and Justice Committee headed by MK Nissan Slomiansky (Bayit Yehudi) where it should have gone.
This was due to the fact that Bayit Yehudi (like Kulanu) has reservations about the personal nature of the law, and the two Davids feared that Slomiansky might not deal with it partially. Reservations on the part of the State Attorney’s Office and Police increased concern for the bill’s fate.
Next it became apparent that one of the Likud members on the committee – Benny Begin – conditioned his support on its being declared that the law would not apply to Netanyahu retroactively. Despite very heavy pressure placed on Begin by Bitan and Amsalem, Begin refused to change his position, and was consequently deposed from the Internal Affairs Committee, to be replaced there by Bitan himself.
This in itself is not an unusual move when the coalition decides to place strict voting discipline on its MKs. However, in this case there is serious doubt as to whether there is a majority to get the bill through first reading even if the committee approves it, and to go by the way Bitan has acted in recent weeks when he has failed to get the support of the Likud’s coalition partners for legislation he seeks to promote, he might well end up threatening them with early elections (which none of the Likud’s coalition partners want at the moment).
Given the fact that the bill is highly problematic in democratic terms, due to its personal nature and retroactivity, what we face is not only anti-democratic in the substantive sense, but a form of conduct that can best be described by means of the oxymoron “bully democracy.”