(iPoster) From Populism to Regime Change in Israel

• In Event: Poster Session: Democracy and Autocracy I

Abstract

Political theorist Jean Cohen (2023) has argued that a “populist government has crossed the threshold to a hybrid regime when [it] creates authoritarian enclaves, and when the primacy of the normative over the prerogative state becomes uncertain … and when the populist constitution (a new one or an amended, coupled with stacked apex courts) shifts from being a normative structure that establishes power and guarantees freedom and the rule of law … to a nominal constitution that functions primarily as a power map.”
Cohen’s definition is an apt description of the constitutional process that has been going on in Israel since 2023. The general elections of 2022 brought back to power a bloc of ethno-nationalist populist political parties, including three proto-fascist ones. Two months later the newly established government announced a wide-ranging program to overhaul the constitutional facet of Israel’s legal system in the direction of turning it into a hybrid regime. The key points of this program were:
 Enacting a “nevertheless clause” that would allow the Knesset (parliament) to overrule decisions of the High Court of Justice – the Supreme Court sitting as a constitutional court – with a majority of 61 members of Knesset out of 120, a majority that in Israel’s parliamentary system the executive branch enjoys by definition.
 Changing the composition of the judicial selection committee that appoints all judges in the system so that the governing coalition would have the final say in judicial appointments, at all levels.
 Eliminating the reasonableness test when the courts consider the constitionality of government decisions. This law, the only one enacted so far, would have denied the courts the primary instrument they use for judging such decisions, but it was subsequently annulled by the High Court of Justice.

Other ideas floating in government circles but not included in the formal program yet were: lowering judges’ retirement age from 70 to 67, which would force a number of current (liberal) Supreme Court justices to retire; appointing a Chief Justice from outside the Court, as against the current system by which the longest serving justice becomes Chief Justice automatically; diminishing the authority of the Attorney General so that her/his position will become that of the government’s lawyer, rather than overseer of the legality of government actions; debilitating the Israel Bar Association by forcing it to reduce its membership fees. These measures all fall under the UN Human Rights Council’s (2024) warning against “governments undermining democracy by attacking the rule of law and the independence of judicial systems.”
The announcement of this plan had generated unprecedented resistance from the country’s liberal elite. Israel’s most highly respected (and controversial) jurist, former Chief Justice Aharon Barak, the chief promulgator of the country’s liberal “constitutional revolution” of the mid-1990s, averred that, if implemented, the government’s program will turn Israel into a “hollow democracy,” his term for a hybrid regime. On the street, until October 7, 2023, hundreds of thousands of people (out of a population of ten million) had been going out to demonstrate against it every Saturday night for ten months, led by some of Israel’s most prominent hi-tec entrepreneurs, business executives, scientists, academics, medical doctors, jurists, and retired military leaders.
This elite mobilization came as a surprise to activists and observers alike. Since the demise of the Oslo peace process with the Palestinians in 2000, the Israeli elite had mostly stayed out of politics, preferring, rather, to enjoy the country’s growing economic prosperity. What accounts for this sudden change of heart, I would argue, was the threat felt by the largely Ashkenazy (European), largely liberal upper ethno-class as the largely Mizrachi (Asian-African), largely populist lower ethno-class seemed to have gained the political upper hand and was about to dispose of all liberal checks and balances.
Implementation of the government program, as well as the protest against it, were slowed down by the still ongoing Gaza war that ensued from the massacre carried out by Hamas in southern Israel on October 7, 2023, but they are now being rekindled. At the time of writing, it is unclear how long the war will last and how it will affect the makeup of the Knesset after the next elections, scheduled for October 2026. Should some version of the current government coalition prevail, Israel’s path towards a hybrid regime seems assured.

Author

• Yoav Peled, Tel Aviv University