‘Israel already at minimum checks and balances’
In a comparison of Israel to 66 democracies, Israel was the only state among them that would lack any structural political limitations on the legislative branch, if a bare majority judicial override clause were implemented, Professor Amichai Cohen found in a 2019 comparative analysis.
With a judicial reform plan to strengthen parliament’s prerogatives over against those of the High Court the gap between Israel and these 66 democracies could only get wider.
“Israeli democracy, or the Jewish and democratic state, has a very special political structure in relation to other democracies, it is a political structure in which all political power is concentrated in the hands of a very few people,” Cohen, a senior fellow at the Israel Democracy Institute, explained to The Jerusalem Post.
Cohen called the concentration the “nucleus of control,” and explained how there is currently no separation between the government and the Knesset. The same “nucleus” controls both.
“This same small group of people are the heads of the parties of the coalition,” said Cohen. There was no local authority that balanced out this lack of separation. Cohen made the distinction that it wasn’t even the government that had all the power, it was the ruling coalition.
Power in the hands of “a very small group of people is a very unique thing in democracies. Usually in a democracy power is more widely distributed.”
During the debates about the new reforms, Israel has been compared to states like the
United Kingdom, which also doesn’t have a formal constitution, but Cohen notes that it has many checks and balances in place.
“It is not really so concentrated – first of all they have devolved powers to Scotland, to Northern Ireland and to Wales. They also have local elections that greatly strengthen the individual members of parliament who can rebel because their legitimacy does not come from the party leader but from their constituency.”
The only real check in the system is the High Court, and this check could soon be removed.
Cohen’s 2019 book, Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government, looked at seven of the main structural checks on political power.
These limitations were a supreme court with the power of judicial review, a bicameral legislative system, a president with executive powers, a federal government, regional elections, membership in a regional supra-governmental organization, or acceptance of the International Court of Justice’s authority.
Six of the 66 countries reviewed had at least five structural checks and balances, eight had four limitations, 16 had three, 26 had two limitations and 10 had just one restriction. If Israel introduces the Override Clause, it will be the only country out of 67 reviewed in the book that has none of the six common structural restrictions in addition to this power.
When asked if Israel was the only democratic state with such a low level of checks and balances, Cohen suggested that New Zealand, considered highly democratic by most people, might be comparable. Poland’s democracy which is considered by most people to be more authoritarian, has far more of Cohen’s democratic safeguards than either Israel or New Zealand, but Cohen did not elaborate on this in his survey published online.
The problem with a lack of checks and balances, Cohen explained, was that fewer restrictions increased the likelihood that power could be abused to remove opposition. He emphasized that he wasn’t saying that this would occur in Israel, but only that it was more likely without institutional safeguards.
Of the 66 states reviewed, three had some form of Override Clause. With Levin’s proposal, Israel would be joining a very small club of such democratic states. The Israeli version proposed by Justice Minister
Yariv Levin would allow for the Knesset to strike down a High Court ruling with a simple majority of 61 votes.
During the reform discussions in the Knesset Constitution,
Law and Justice Committee, Canada has repeatedly been cited as a country with an Override Clause, but Cohen notes that Canada has many other structural limitations on power, such as a federal system with provinces. While Canadian provincial legislatures can vote for the clause’s use with a simple majority, its implementation is limited to five years and is restricted to certain fields of law only.
If Israel were to introduce an Override Clause, Cohen suggested that a more reasonable system would to have its implementation not by simple majority, but by two-thirds. This would put a structural restriction on the power of the ruling coalition, forcing it to work with the opposition.
He added that there had been a significant change in the discourse since Cohen first wrote his book.
“What has changed is that now they are not only thinking about the override clause, only about the Override Clause,” he said.