Blog 16 B: The Structures Underpinning Israel’s Procedural Democracy

It is one thing to write about the different ideas of democracy – in this case liberal democratic versus parliamentarian populist majoritarian democracy – and the constraints or lack of constraints on each.  It is another to describe the actual structure of Israel’s democracy or the particular practices of one democratic regime or another. The latter may or may not reflect the democratic ideology behind the practice (see Blog 17C), but practices may be successful or unsuccessful regardless of democratic ideology, though I would argue that there is a degree of correlation between one ideology and its shortcomings in practices versus those of another ideology. However, in this section, I will focus on the structural limitations of a specific state – Israel – regardless of ideology.

The limitations in governing a polis may be a result of ideology, but whatever the ideology, they are all reinforced by the specific structure of Israel’s political system.  Israel is not only a social democracy, albeit a declining one, but also a procedural democracy with an intricate system allowing its citizens to elect a governing majority for a limited term. Members of the Knesset, however, are nominated, not on the basis of the votes of the constituencies they represent, but by party leaders. This means very central control, even though the exclusive proportional representation method of elections, with a low threshold of entry to becoming a recognized party – 3.5% of the vote in an election – and the state financing of political parties, enable even small groups to win seats in the Knesset.

Israel’s excellence as a procedural democracy is most evident in this electoral system based on proportional representation. Of course, this ends up favouring not simply a multi-party system, but a system with a myriad of parties. The result: a multi-multi-party system and coalition governments as the norm. On that side, representation gains, but at the cost of governability.

Procedural democracies ensure “civil rights for all, separation of powers, rule of law, a multi-party system, regular and fair elections, change of governments, free mass media, an independent judiciary, and national security services under civilian control.”[i] Israeli citizens, including the 307,000 Arab permanent residents in East Jerusalem (who are entitled to acquire Israeli citizenship), generally enjoy fundamental rights of free speech, movement, association, voting, representation, and the right to peaceful protest – though with some restrictions. Though non-Jews may apply to be citizens of Israel, only Jews enjoy an almost automatic right to become citizens.[ii] Israel is not a signatory to the Refugee Convention and Palestinian refugees are denied a right of return. Thus, equal access to membership does not exist in Israel.

Much of the procedural system fosters disunity and incoherence rather than collaboration and cooperation among the different elements of Israeli society. Further, legislation and policies already adopted begin to be built into the structure of Israel’s democracy, such as:

• The Entry Law preventing family reunion by denying residency rights to the spouse of an Israeli citizen who lives in an enemy area.
• Calling for a boycott of Israeli goods and services is banned.
• Palestinian citizens are forbidden to commemorate Nakba Day.
• NGOs are required to disclose their funding sources if over half of their monies come from foreign governments.
• Emergency Regulations permit press censorship, administrative detention, banning of an organization and land expropriations.
• Even though not enforced as in an authoritarian state, a permit is required for a demonstration to be held and for a newspaper to be published.

On the other hand, perhaps the best indicator of Israel’s high status as a democracy that protects minority rights while allowing the majority to rule is its current judicial system with its very independent and impartial judiciary that is now under threat. The appointment of judges ensures that the process is not dominated by political considerations. Court rulings are binding and are followed. However, in the Israeli system, the independence of judicial figures is even more extensive. The Attorney General has an independent status in the government and legal advisers are appointed to each department independently of the Minister or Deputy Minister. This is the system of procedural democracy currently under the greatest threat and the extent of that threat will be dealt with later.

However, Israel’s status as a democracy has mixed reviews. In an incisive article, Ian Parameter argued that Israel is indeed a democracy, but a flawed one.[iii] After all, in 2020 alone Israelis went through three elections in less than a single year. The suggestion was that Israel’s democracy suffered from systemic structural problems. The Global Democracy Index for 2019 of The Economist ranked Israel among 167 countries by five democratic criteria and determined that Israel was a “flawed democracy” though it still ranked 28^th on the list. The five criteria used were:

(1) electoral process/pluralism;

(2) functioning of government;

(3) political participation;

(4) political culture;

(5) civil liberties.

As indicated above, Israel scored high marks on electoral process/pluralism and political participation, but poorly on three other criteria: civil liberties, political culture and government functioning. On the issue of civil liberties, Israel scored only 5.88 out of a possible 10.

Again, as described above, Israel’s system of choosing political representatives has been the most democratic in the region with legal and legislative procedures, as well as most outcomes, reinforcing strong democratic institutions. But, as I also stated, the system encourages populism that is antithetical to a liberal democratic regime. Elected members of the Knesset fear their own leaders who determine not only whether they can command ministries, but how high they are on the party electoral list, and, therefore, the prospects of becoming a member of the Knesset. The parties are also subject to the will of an electorate often driven by its own fears and passions.

The elections themselves are overseen by the Central Elections Committee (CEC) with an additional protective rider: CEC decisions can be appealed to the Supreme Court. The many parties seeking election cover the full spectrum of Israeli political opinion from right to left, from Jewish to Arab inclinations. There are Ultra-Orthodox and Orthodox Jewish religious parties and an Arab religious party that is unique in willing to enter an Israeli government on condition that Arab interests are taken into account in passing a budget and other legislation. There is a Jewish nationalist party and an old-fashioned socialist party, though the latter failed to cross the threshold for a place in the Knesset in the 2022 election. The various media also reflect the diversity of Israeli opinions. Knesset debates are spirited and generally respectful though sometimes rowdy.

Israel has had the most independent judiciary among all Western democracies and has even overruled CEC decisions repeatedly overturning attempts to limit Arab participation. It has only once confirmed banning a party, a Jewish extremist party, Kach, from which Itamar Ben-Gvir’s Otzma Yehudit (Jewish Power) emerged. Like its predecessor, the party not only espouses Kahanism, but also anti-Arabism.

The courts have jailed a former Prime Minister (Ehud Olmert) for corruption, a former President (Moshe Katsav) for sexual offences, and has charged the current Prime Minister (Binyamin “Bibi” Netanyahu) with corruption.

However, the system of strict proportional representation, with only a threshold of 3.25% of total votes cast to obtain a Knesset seat, ensures a large number of parties and party groupings in the 120-seat Knesset. Coalition governments are inevitable with the dominant centrist party beholden to outliers. In order to get smaller parties to join a coalition, compromises on legislation are necessary. But the negotiations are often grubby with agreements made to satisfy particular interests going well beyond what a majority of the electorate would support. This perilous situation to a liberal democracy has been exacerbated by the growing nationalist settler movement numbering over 700,000, 10% of Israel’s Jewish population.

However, I believe that actual practices are even more important than structural and ideological ones in determining the success of a government. I will deal with those in the next blog.

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[i] Op. cit.

[ii] There is increasing controversy over the question of “Who is a Jew.” There are powerful forces within Israel that want to narrow accessibility.

[iii] Ian Parmeter 2020) “Israel’s democracy: a systemic problem,” The Interpreter published by the Lowy Institute, February 20.