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Israel, Like Orban’s Hungary, Is a ‘Frankenstate’ in the Making

Shai Agmon
Noam Gidron
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Empty seats in Israel's Supreme Court, in Jerusalem in October.Credit: Oren Ben Hakoon
Shai Agmon
Noam Gidron

What’s really so horrible about Frankenstein’s monster? In Mary Shelley’s classic novel, Dr. Frankenstein used ordinary body parts to assemble a twisted, human-like creature. Each one of the monster’s organs was a normal organ. What made the monster so terrible was what resulted from cobbling them together in this way: the mishmash of different parts that were torn out of their context and deliberately patched together in a menacing manner.

This is exactly how Hungarian Prime Minister Viktor Orban has distorted his country’s democracy over the past decade, according to legal scholar and sociologist Kim Lane Scheppele of Princeton University. Scheppele has aptly described the series of reforms passed by Orban since he assumed power in 2010. Each one in itself seemed reasonable. For example, a regional election method from Britain was combined with German criteria for determining the size of electoral districts. Then the system of gerrymandering was imported from the United States, along with reforms that rebuilt the media market and justice system.

Whenever criticism arose from the opposition in Hungary or from the European Union, Orban always responded in the same way – by pointing to Western democracies and claiming that “they do the same thing, there is nothing undemocratic about it, it works in other places.” But as with Frankenstein’s creature, the danger lay not in any one particular reform but in the way they were melded together. Hungarian democracy was dramatically impacted. And this, according to Scheppele, is what leads to creation of a “Frankenstate”: an ostensible democracy comprised of an array of individually “reasonable” parts that can be defended comparatively but spell disaster when put together.

Scheppele’s analysis suits Israel as well. The constitutional revolution implicit in the statements of those apparently destined to become top ministers in the country’s new government is reminiscent of the Frankenstein-ization process of Hungarian democracy. Right-wing figures talk about a series of reforms, each of which could be the subject of a thoughtful discussion, with examples cited from other countries that employ a similar policy – while the question of how the combination of all these elements will affect Israeli democracy is ignored. Here are three examples of key reforms that will likely soon be on the agenda:

The first and most significant reform is the so-called override clause. If it passes in one of its more extreme versions, it will enable the government to circumvent virtually any Supreme Court ruling and, in addition to denying the court the ability to criticize any Knesset legislation, it will also disallow its ability to rule on any administrative action undertaken by the government.

The version of the override clause that is more likely to be approved would enable a majority of 61 MKs to legislate laws that contradict Israel’s Basic Laws, particularly the Basic Law on Human Dignity and Liberty. In other words, the aim here is to give the incoming coalition unlimited power versus the Supreme Court.

The second reform would restrict “standing” – that is, it would limit the standing of those eligible to petition the Supreme Court against government actions. In the 1980s, the Supreme Court began to adopt a broad interpretation of standing, according to which a public petitioner could sue on behalf of broad interests such as preserving the rule of law and combating corruption. This paved the way for petitions by social justice and human rights organizations aimed at protecting weaker groups that had been traditionally underrepresented in the courts.

Although such lawsuits are generally ascribed to left-wing organizations seeking to protect Palestinians in the territories, they can cover a wide range of issues: from defending LGBTQ rights to protecting impoverished families from having their water and electricity cut off, to protesting discrimination against minorities in the distribution of state lands, in admissions committees and in hiring practices. If the right of standing is diminished, it will become very difficult for minorities to turn to the court, to protect their rights and to place limits on government measures. Again, more power for the coalition, less power for the citizens.

The third reform relates to the selection of judges. It calls for changing the composition of the Judicial Appointments Committee and canceling the seniority method by which the president of the Supreme Court is appointed. Here, too, the purpose of the reform is to provide more power to the ruling coalition.

The seniority method, by which the longest-serving justice automatically becomes the court president and politicians have no influence over this process, appears to be headed for annulment, with politicians being given power over the appointment in question. And this comes about at a time when the next Supreme Court president is due to be Justice Isaac Amit, who is identified with the liberal side of the bench.

Other reforms are imminent as well: splitting the attorney general’s role, allowing the political appointment of legal advisers to government ministries, and so on.

Much discussion of each of these initiatives has been going on for years, both inside and outside academia, with the aim of figuring out the best way to improve the Israeli justice system. Make no mistake, there is definitely room for improving the justice system and parallels to each one of these reforms can be traced to other countries.

Hungarian Prime Minister Viktor Orban attends the autumn session of parliament in Budapest, Hungary, in September.Credit: BERNADETT SZABO/ REUTERS

In response to the protests against each one, right-wing leaders will likely employ Orban’s rhetorical strategy: “Canada has an override clause too and the world didn’t come to an end,” one will say. “Standing in other countries is more limited,” another will chime in. “In Japan, the public selects the judges!” a third will shout. “In the great United States,” a fourth will add, “the president of the Supreme Court is not appointed on the basis of seniority.”

This rhetorical strategy is not to be taken lightly. The Israeli right has been using it successfully for quite a while. But amid all the disparate political battles over each of these legal reforms, the awareness of concurrent efforts to diminish Israel’s liberal democracy has all but disappeared.

Each time anew, the left cries “This is the end of democracy” sounds like Chinese to most citizens. This ritual causes resources to be wasted, leads to an erosion of public attention and makes it easier for the right – by the so-called salami method – to gradually push through reform after reform, each one ostensibly reasonable in its own right. But all these moves have the same ultimate aim: not a separation of power between branches of the government, but the removal of any impediment to the coalition being able to attain unlimited power.

For a long time now, this has not merely been a struggle between judicial activism and conservativism. It is a struggle between those who seek to improve the court in keeping with democratic-liberal values, and those who oppose liberal democracy.

In centrist and left-wing circles, the recent election defeat has understandably provoked fear. But some of these are highly exaggerated: Despite the homophobic elements in the emerging coalition, LGBTQ people will not be sent en masse to conversion therapy, nor will every woman be forced to wear a head covering every time she leaves the house. We are not about to wake up in a theocracy or in Ben-Gviristan.

But if, after a few months pass, we are quick to breathe a sigh of relief, thinking the devil wasn’t really so terrible, we are liable to overlook the genuine danger: an agglomeration of “reasonable” reforms into a whole that is larger than the sum of its parts, a whole that will create a democracy here that is very different from the one we have known so far: that is, a Frankenstate. That is where the real danger lies. That is what we must be prepared for. That is what the liberal public in Israel must be ready to face.

Shai Agmon is the Rank-Manning Junior Research Fellow at New College, University of Oxford, and a research fellow at Molad – the Center for the Renewal of Israeli Democracy.

Dr. Noam Gidron is a senior lecturer in the Political Science Department and in the Joint Program in Politics, Philosophy and Economics at the Hebrew University of Jerusalem.

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