Yohanan Plesner, president of the non-partisan Israel Democracy Institute, shares his analysis of what's at stake in the imminent election campaign in Israel.

See also: Yohanan's pre-election video briefing >>

Introduction

For the first time ever, Israel is heading for a second national election just months after the conclusion of April's vote. For many Israelis who cherish the democratic values of this country, this election is critical, not so much because of which candidate might end up being prime minister, but because of the possibility of judicial reforms that might soon pass in the Knesset which would limit the Supreme Court's ability to perform crucial oversight over the political system.

How did we get here?

Before detailing what is at stake in this unprecedented political situation, it is important to understand how we got here in the first place.

Following April’s elections, President Reuven Rivlin granted Prime Minister Benjamin Netanyahu a "mandate" to form a governing coalition of at least sixty-one members of Knesset. Netanyahu had until May 29th to present a coalition for approval of the Knesset, but he failed to do so. Because of flaws in our electoral system, Netanyahu was at mercy of many small parties, most of them ultra-Orthodox who insisted that the new government not go forward with a plan that would have increased the numbers of yeshiva students enlisted into the IDF. Avigdor Liberman, the chair of the Yisrael Beitenu party and a longtime political ally of the Prime Minister, responded by positioning himself as the leader of the secular right-wing in Israel, and ultimately refused to join a coalition that promised to be dominated by the agendas of the religious-right.

It is important to note that Netanyahu’s bargaining position was exacerbated by his insistence on immunity from prosecution. In the past, he could turn to alternatives on left or center to join his government as he did with the Labor party in 2009 and Tzipi Livni's Hatnua party in 2013. Even the threat of a more centrist government with Isaac Herzog's Labor party following the 2015 election was enough to get Netanyahu's partners on the right to check some of their more extreme fiscal or policy-related demands. This time, however, because of his legal predicaments, Blue and White and other centrist parties stated that they would not join a Netanyahu-led government, with his multiple indictments looming.

As the deadline approached for forming his government, and with Liberman standing strong in his insistence on a bill to draft the ultra-Orthodox, time ran out for Netanyahu. Instead of returning his mandate to the President who was then, according to the law, supposed to task another MK with forming a government, Netanyahu proposed — and subsequently passed — a bill to disperse the Knesset and set new elections for September 17th.

What's at stake?

In this year's first national election, in April, the Israeli electorate came to the polls thinking about who among the party leaders was best suited to keep them both safe and employed. In the coalition negotiations that followed, however, the issues on the top of its agenda were the possibility of immunity for the Prime Minister and clashes on the questions of religion and state between Avigdor Liberman's Yisrael Beiteinu party and the ultra-Orthodox parties. All this, despite the fact that Prime Minister Netanyahu repeatedly stated on record that he would not promote any personal legislation intended to thwart the legal process against him.

Now, as we quickly approach September's election, the equation has become clear. When we poll Israelis, significant portions of the public routinely say that they support Netanyahu on issues of war and peace and on his stewardship of the economy. Over 60% of Israelis think that the Prime Minister has improved Israel's international standing, and a solid majority supports his policies on the Iranians, and in general believe that he has enhanced Israel's security standing. When asked their opinion of Netanyahu on economic matters, 45% say they are satisfied with his handling of the economy, and an additional 22% think he is doing a "fair" job.

When it comes to issues of religion and state, however, the situation is reversed. Most Israelis do not agree with policies that the Prime Minister has supported — either because he truly believes in them or because political expediency forces him to placate his religious coalition partners. For example, 60% of the Jewish public thinks that public transportation should be allowed on Shabbat. Similarly, 60% support the opening of supermarkets on Shabbat, and 59.5% of the Jewish public in Israel supports civil marriage — free of rabbinic oversight.

For Netanyahu, this situation creates a simple equation. The more the public is focused on security and the economy, the better it is for him; while the more the focus is on "civilian" issues — especially relating to religion and state — the better it is for the center-left parties and for Liberman.

The wildcard

The wildcard issue in this election seems to be the proposed changes in the balance between the branches of government in Israel and how they relate to the possibility of immunity for the Prime Minister. As opposed to questions of land for peace or the relationship between religion and state, the issues surrounding legislation that could alter the makeup of Israel's democracy, are less well known to the general public.

During May's coalition talks, it was proposed by some of the Prime Minister’s allies that Israel's Immunity Law should be amended and reverted to its previous incarnation as it stood before 2005. According to the current law, once charged with a crime, MKs must request immunity from the Knesset. Whatever the Knesset decides (first a committee, and then the full house), the outcome may then be contested in the Supreme Court. Prior to 2005, MKs enjoyed immunity from prosecution unless the Knesset voted to revoke it. This is what a number of the Prime Minister's supporters had sought to reverse, while also including a clause blocking intervention by the Court. Many experts believe this proposal to be a political "red herring". In any case, if the Likud forms a right-wing coalition after the election, the Prime Minister could simply ask to receive immunity under the existing law and would most likely succeed in getting the votes needed to do so.

The more radical reforms currently being proposed would include severely limiting the Supreme Court's ability to perform judicial review by passage of an "override clause", nixing its authority to strike down Knesset laws. This reform would also limit the Supreme Court's authority to exercise oversight of administrative decisions by the parliament and government. There are many in Israel who believe that some sort of realignment is necessary to better balance the branches of government. This argument purports that Supreme Court President Aharon Barak’s "Constitutional Revolution" of the 1990s went too far, and that any eventual constitution must be adopted by the people — not by judges. Ideological proponents of this judicial philosophy have now found willing allies in politicians who are cynically seeking creative avenues for escaping their legal predicaments.

The case against an override clause comes down to the classic argument of "procedural democracy" versus "substantive democracy". Democracy is much more than majority rule. It is a vehicle for governance that includes respect for the values of rule of law, limited government, individual rights, and minority rights and the need to safeguard them. Most importantly, retroactive, individually-inspired legislation undermines the principle of equality before the law.

There are other changes to Israel's judicial branch that may very well be proposed under a number of the coalition scenarios following the election. These include a comprehensive program that would fully politicize the appointment of judges, changes in the process of appointing legal advisers for government ministries and turning them into political appointments, and dramatically cut down the scope of judicial review over decisions of governing institutions, in order to prevent the court from intervening in parliamentary decisions.

Together, these proposals could institute irreversible damage to Israel's judiciary and its law enforcement agencies. Moreover, in Israel’s unique circumstances an override clause would mean the removal of the one meaningful check on political power and the only effective guarantor of individual and minority rights. After all, under Israel’s system of government, the judicial branch is the only check on political power, since the country has no constitution, bill of rights, federal distribution of power and only one chamber of parliament. In essence, if an override clause were to be legislated, elected officials in the Knesset would hold almost unlimited political power.

Behind the headlines: What do Israelis think about these issues?

Politicians who were discussing this issue just a few months ago, in the course of the failed talks to form the government, are now seeking to bury this same topic. The media has not helped the situation, as it has made it hard to break through the cacophony of political parties vying for attention, as can be expected during an election campaign. Polling by IDI and others has shown that the public does care about these issues, but is unaware of their inherent dangers — therefore, they are very low on their priority list when voting behind the curtain.

The situation with regard to the issue of possible immunity is rather clear-cut. A survey we conducted in May during the coalition negotiations showed that 62% of the general public opposes amending the Immunity Law. On the question of whether the courts in Israel are too powerful and need to be restrained, the public was split, with 41% thinking the Knesset should be strengthened, and 39% opposing the weakening of the judicial branch.

In addition, in the months leading up to the second election in September, IDI also conducted in-depth surveys among moderately right-wing Israeli voters. In terms of political parties, these are voters who chose Blue and White, Gesher, Yisrael Beiteinu, Likud, Kulanu, New Right and Zehut in April's election. They can best be described as conservative, secular and traditional, over age thirty, and graduates of higher education.

Our polling revealed that of the Israelis who voted for the parties noted above, 69% believe that a prime minister who is indicted must stand trial and not seek to avoid justice. 67% agree that judicial review by the Supreme Court of laws and administrative decisions by ministers and MKs must be protected. Additionally, 55% think that immunity from prosecution for public figures currently in service creates inequality under the law and among citizens. What do these numbers tell us? That while they want a right-wing government that furthers their ideology, when it comes to war, peace and the economy, a significant majority of conservative voters is not seeking radical reforms of Israel's judicial system.

Scenarios

At this point in the race, as Israelis are waking up from their summer political slumber and are beginning to really pay attention to the campaign, it appears that there are two main possible outcomes from this election.

The first possibility is some sort of national unity government including Likud, Blue and White and one or two other center/left or center/right parties. Central to Liberman’s campaign is his promise to insist on such a government. Such a coalition could be ideal for passing significant reforms, such as legislating important changes to Israel's electoral system, as long promised by many politicians, including Benjamin Netanyahu. In this scenario, Blue and White and others could possibly force Netanyahu either to step aside, enabling the Likud to join such a government, or extract a promise from him to resign if he is indicted. Alternatively, even if Netanyahu were to be able to remain in politics, he would have to give up the hope of a government that would guarantee him his freedom with unwavering immunity from any and all possible prosecutions by the legal system.

The second scenario is that over the final two weeks of the campaign, Netanyahu and his natural partners on the right will be able to increase their portions of the political pie and succeed in forming a coalition very similar to the outgoing one. The key difference in this new government would be the absence of Moshe Kahlon's Kulanu party — which has now folded into the Likud — which served as a bulwark against harmful populist legislation throughout the previous Knesset. In this case, the assault on the rule of law would again rear its head, and the full package of reforms described above would be very much back on the table. An added bonus for Netanyahu would be his all-but-guaranteed protection from his legal troubles. The downside of such a government, from Netanyahu's point of view, would be that he would be held perpetually hostage to the religious and diplomatic whims of the coalition's extremist junior partners.

Conclusion

Sadly, packages of judicial reforms are just the latest populist proposals brandished about. Over the past decade there have been numerous attempts to pass legislation for narrow political purposes. The good news is that thanks to diligent politicians and civil society leaders, in the end, only a small number of these bills ever found their way out of a Knesset committee room. This is why, whatever the final electoral outcome, we know these issues will not go away once Election Day is over. Under multiple scenarios for the results on September 17th, political leaders will continue to push for radical changes to our judicial system that dangerously undermine the very foundations of Israeli democracy.

Israel is a young, still evolving democracy, and the road towards the correct balance between the three branches of government remains a long and mostly untraveled one. Nevertheless, whatever changes are eventually proposed, I believe that they should result from a serious dialogue between elected leaders from across the political spectrum, academics, and leaders of civil society — rather than being based on the whims of politicians seeking relief from their legal troubles. The hope is that more and more Israelis, from all walks of life and political ideologies, bolstered by our friends from around the world, will understand the dangers inherent in these proposals and join together in strengthening the democratic and Jewish character of the country so dear to us all.

Yohanan Plesner is the president of the Israel Democracy Institute (IDI) in Jerusalem. He previously served as a Member of Knesset from 2007 to 2013.