From democracy to autocracy: Israel’s constitutional crisis

Israel doesn’t have a comprehensive Constitution. In 1950, the Israeli Parliament, the Knesset, adopted the Harari Decision, according to which the Knesset would gradually enact basic laws that would serve as chapters for a future written Constitution designed to ensure the completion of the constitutional project. In 1992, two Basic Laws were passed – the Basic Law of Human Dignity and Liberty and the Basic Law of Freedom of Occupation. By 1993, Chief Justice Aharon Barak noted that, by virtue of these basic laws, human rights in Israel had become legal norms for a preferred constitutional state. Hence, ordinary legislation which contradicted the provisions of a Basic Law without stating specifically that it was doing so couldn’t be considered to be valid.

Because the Basic Laws don’t have entrenched constitutional status like, for example, the 1996 South African Constitution, Israeli courts generally don’t strike down any law because it deems the legislation to be unreasonable. On occasion, however, after evaluation of executive decisions by ministers and administrative decisions of government or officials, the courts will assess the justification for these decisions within the prism of reasonableness and, in some cases, strike down these decisions for want of reasonableness.

Reading certain decisions of the Israeli Supreme Court, one finds judgments that have held that treating Jews and Arabs differently was absolutely prohibited, and decisions which have provided greater human rights protection, mostly in issues of freedom of speech. Both these protectors lie at the very core of a democracy.

The implication of the abolition of reasonableness review piloted through the Knesset by the coalition of Benjamin Netanyahu is that it will substantially limit the independence of the judiciary and its powers. As a result, it will remove important legal restrictions on government action. If this law passes muster, Israel will have moved from a society bounded by the rule of law to one subject to the dictates of a simple majority, albeit transient.

The defence by supporters of this erosion of judicial review is that, prior to the development of the Basic Laws and the more entrenched conception of review, Israel was still regarded as a democracy, however imperfect. There are at least two answers to this canard. First, based on English common law, Israel always had a concept of review, albeit one that expanded following the passing of the Basic Laws. Second, it would be naïve to elide over the fundamental changes that have occurred in Israeli society over the past 30 years.

Any overlapping consensus about rights and respect for both secular and religious communities isn’t the same as it was prior to the introduction of the Basic Laws. In an increasingly ideology ridden society such as Israel, it’s more likely that a transient majority will use its majority to impose its will on the entire population.

The abolition of a fundamental concept of democracy, which is legally accountable public power which should be subject to clear legal justification, will now allow the imposition of policy which imposes the will of some on all citizens. There can be little doubt that, absent a successful challenge to this legislation, the next chapter in this saga will be a move to disenfranchise – either in full or in part – the Israeli Arab population from voting in elections. If the courts are unable to review this move on the basis of discrimination, past echoes of a claim to democracy would have been eroded.

South Africans have first-hand experience of the erosion of the rule of law as well as the tendentious justifications for gutting the power of independent courts. It starts with curbing the jurisdiction of courts and ends with an autocratic system which works to the advantage of only some, in Israel’s case, the ultra-Orthodox, who claim authority from their exclusive reading of our tradition.

And, for sure, Itamar Ben-Gvir and Bezalel Smotrich don’t regard the Palestinians as anything other than untermenschen who should have no rights in their expanded vision of Israel. The established South African Jewish community, unlike its counterparts in other parts of the world, has been stunningly silent in the wake of this fundamental attack on the democratic structures of Israel. It’s not only astonishing, but is a luminous illustration of how little they have learnt from our own history. With apologies to last week’s Parsha, they are obviously supporters of the view, “Justice, justice, we shall destroy for all other than ourselves!”

• Judge Dennis Davis is an honorary professor of law at the University of Cape Town, University of the Witwatersrand, and University of the Western Cape.