What Matters Now to… Prof. Suzie Navot: Guarding against a ‘Frankenstate’
This week in What Matters Now, we speak with a leading legal expert of comparative constitutional law and hear why Israel is uniquely susceptible to becoming a non-democratic state
Deputy Editor Amanda Borschel-Dan is the host of The Times of Israel's Daily Briefing and What Matters Now podcasts and heads up The Times of Israel's Jewish World and Archaeology coverage.
Welcome to What Matters Now, a new weekly podcast exploration into one key issue shaping Israel and the Jewish World — right now.
On Monday, tens of thousands of Israelis took a day off work to protest outside the Knesset against the proposed judicial overhaul that was — at the very same time — being discussed inside at a stormy session of the Constitutional Committee.
The crowd was a sea of blue-and-white Israeli flags. Mostly secular, they sang, shouted, laughed and cried together against the bills that were, despite all their raucous energy, indeed passed preliminary readings.
Many in Israel who support the judicial overhaul say that by adopting practices from other countries’ judicial systems, they are bringing the country in line with the standards of the international community. Many who oppose the legislation do agree to a need for reform, but say they are frightened that in cherry-picking from around the globe — an override clause from Canada, a law from Norway and elements from the United States — we will be headed toward a “Frankenstate.”
In 2013, Princeton University Prof. Kim Lane Scheppele coined the visceral term in her article, “Not Your Father’s Authoritarianism: The Creation of the ‘Frankenstate.'” In that essay, she writes, “A Frankenstate is an abusive form of rule, created by combining the bits and pieces of perfectly reasonable democratic institutions in monstrous ways, much as Frankenstein’s monster was created from bits and pieces of other living things. No one part is objectionable; the horror emerges from the combinations.”
This week, I made my way to the heart of old Jerusalem to the Israel Democracy Institute where I asked IDI vice president Suzie Navot, professor of Constitutional Law, what could happen if other legal systems are grafted on Israel’s judiciary.
Born in Uruguay, Navot made aliyah to Israel at age 14. A polyglot, she has taught at the Sorbonne as a visiting professor, as well as on the faculties of the Striks Faculty of Law at the College of Management and the National Security College in Israel.
Navot specializes in constitutional law, law of institutions, parliamentary law and comparative constitutional law, which gives her unique insight into what could happen if indeed this global mosaic of legislation does pass.
After this tempestuous week, we hear What Matters Now to a leading Israeli legal expert.
The following transcript has been lightly edited:
Times of Israel: Professor Susie Navot, thank you so much for allowing me into your room here at the Israel Democracy Institute in the heart of beautiful Jerusalem, an amazingly gorgeous building with a beautiful garden. And we’re here sitting on a chilly day inside your heated room. So thank you so much for letting me in.
Prof. Suzie Navot: It’s a pleasure to host you, Amanda. Thank you for coming.
This has been quite the week. We’ve seen massive demonstrations, we’ve seen ups and downs in the Knesset. The opposition is angry, the coalition is determined. And so I ask you, Suzie Navot, what matters now?
As we’re going to talk about this reform, let me tell you something that is happening in Israel, but perhaps we do not see it, because if you look around what is happening in the world we are seeing now a rise of populism in several countries. And along with this trend of populism, we are seeing democratic erosion in many, many countries.
Democracies no longer die in one day. You do not see a violent coup that overthrows the government. Democracies die very slowly. They wear out. And we notice it sometimes with slow changes. And then you wake up the next day and you are not a democratic country anymore. And what is happening in Israel is exactly this trend. And our constitutional structure actually exposes Israel to the dangers of this democratic erosion much more than in any other country in the world.
Israel is unique — it’s unique in so many beautiful ways — but it’s unique because in every other country, you have mechanisms, you have tools that decentralize political power. You have checks and balances. Now, we are hearing every day, and yesterday we heard it, and today we heard it, that Israel needs to restore the checks and balances. And I quote the Minister of Justice [Yariv] Levin, and we need to restore the checks and balances between the branches and to restore the separation of powers. And I argue that it is very difficult to restore something that you do not have, really do not have.
We do not have any tool for the decentralization of the political power of the Knesset. In every country, every country, you have a rigid constitution. You have a splitting of the legislative authority into two houses of government. You have the right of veto in the United States given to the president on legislation. You have a federal structure. So if the Supreme Court, for example, gives a ruling that is not consistent with what the different states in the United States think they will do otherwise, you have a regional electoral system. And sometimes in Europe, you have the existence of international courts like the European Court of Human Rights. Now, all of these tools are checks and balances, and Israel has none of them.
So it is very easy to change the system of government in Israel. It is very easy to become a non-democratic state.
We do not have any tool like this. So what we’re seeing is, I think, the politicians, the government now, they want to rule by the majority. Majority rules in Israel. And I think the most important thing is that in Israel, 61 members of the Knesset — the Knesset comprises 120 — 61 can do anything they want. There is no limitation whatsoever on the power. So if 61 want to overthrow the president, so you need two or three days in the Knesset, a bill, a basic law, and we do not have the president anymore. You want to declare that the High Court of justice does not exist? No problem. Two versus one in the Knesset is enough to say that we do not have a Supreme Court anymore.
And that is the problem of Israel. And that is the problem even when we are all the time hearing that people are comparing Israel with other states. We are completely different. And that is what is going on today in Israel: a fight over the power, over the absolute power of the new government.
We are all, of course, very anxious over what’s happening. And let’s just spell it out a little bit more for our listeners. You mentioned there are always countries that have a clear constitution, but of course, there are countries that don’t have constitutions.
I know only of two.
England, New Zealand, Canada…
Canada has the Constitutional Act and the Charter of Rights and Freedom. So for me, it’s a constitution. I know only of two.
Okay, so the two are?
England and New Zealand.
England and New Zealand — and Israel?
Israel? Well, we do not have a document called the Constitution. But I used to ask my students, so what is the constitution? It’s not only a paper, it’s something that functions as a constitution. So if your rights, Amanda, and my rights, are protected by a Basic Law, and if we have a Supreme Court that can declare that a Basic Law is unconstitutional, like you may in Israel, so we do have something that is like a constitution.
It’s not a rigid constitution, it’s a very fragile one. It’s not complete, but it works for me and for you as a constitution. And I think that is what is important. If I can actually make my rights useful — they are effectively protected because if you do not have a constitution so the majority that is in the government at this moment, they can do whatever they like. But in Israel, as of today — and I cannot speak about what will be tomorrow or the day after — but as of today, your rights and my rights are protected by the Supreme Court. And the Supreme Court may decide that a law that has been enacted this morning in the Knesset may be declared unconstitutional by the Court.
We have judicial review of laws like in the United States and in most of the countries in the world. And this is a constitutional mechanism. So it’s not a constitution. If you look at Wikipedia and you write the Constitution of Israel, you will not find it. But in many books, for example, Israel is referred to as a constitutional state by Basic Laws. For example, in Germany, the Constitution of Germany is not called the Constitution of Germany, but it’s called the Basic Law of Germany. And still, it works as a constitution. If it walks like a constitution, it sounds like a constitution and it looks like a constitution… Even if you call it a Basic Law, then it’s a constitution. So I say I think we are two and a half countries in the world without a formal, rigid constitution.
So there are some that call Israel a constitutional democracy, as you said, and there are others who label it a parliamentary democracy. And I think this kind of gets to the heart of the matter that, okay, so where is the actual democracy? Is it in the parliament? Or is it in the idea of the constitution and the protections?
It’s not all of this or the other because a democratic country may be a parliamentary democracy, or a constitutional monarchy, for example. Spain is a democratic country. It’s a parliamentary system, but they have a monarch, and it may be a presidential democracy like the United States. So we are a constitutional democracy. The system of government is not the separation of power that you have in the United States. That is very, very clear. You have a president with all, you know, the governmental power and the executive power and you have the House of Representatives. That is completely different.
In Israel, the system is we have a parliament, and out of the parliament comes the government. Most of our ministers are members of the Knesset, almost all of them usually. So it’s not a very rigid separation of power. But still, we are a democracy today.
I think it’s very clear that there are different camps in Israel —
Yeah, unfortunately, because I think democracy has nothing to do with right or left or with religious people or secular people, with Jews and Arabs. I think democracy is something that is important for everyone because you never know when you will be a minority.
Right. And that’s something I wanted to ask you about, because one camp is saying, hey, majority rules. We are the elected officials. We should be the ones who, for example, elect the Supreme Court judges. The people gave us power, and we should represent the people. And then there’s another camp that says what about minorities?
The first camp, majority rules, they have perhaps a very, very, I think, wrong idea of what democracy is. Democracy is not majority rule because if it’s the only principle of democracy, then the majority can do terrible things to the minority and you will not call it a democratic country. And history taught us a lot about majority rules.
In my lectures nowadays, I ask, okay, how do you define democracy? And the answer I get is “majority rules.” So it’s two words. I say, okay, you define majority by two words? Okay, now try to define soccer or football in two words. So the answer I get to this one, they say, okay, not football. It’s much more complicated. I say, okay, there you are, democracy — it’s much more complicated than majority rules. Democracy is like a star with five points. You need separation of power, you need the protection of minorities, you need a rule of law, and a judiciary that is completely independent. And you need, of course, free elections. Without this, this is not a democracy.
I would add free press as well.
Free press, for me, it’s part of the free elections. Because in order to have free elections, people need to know how to vote and for whom to vote. And it depends on the freedom of the press and the freedom of speech and the freedom to go and demonstrate. Without it, we will not have free elections. So it’s part of it.
And if you want to know a real, I think, definition of democracy, there is a democracy index by the economists. They have 60 parameters of democracy, and by these 60 parameters, they check each and every country.
So it’s not majority rules. For me, when you say majority rules, I say, okay, this government was elected, legally elected, and they may rule as they want, but I want to know what are their limits, and what things they cannot do. For example, in my view, they cannot change the basic structure of Israel, they cannot decide. They are not legitimate to decide that this country will not be Jewish anymore. Likewise, they cannot decide that this country will not be democratic anymore, because these are things that are the basic values of the state. It’s part of the Declaration of Independence.
So the government that we choose every four years, the Knesset and the government, they can rule as they see fit, part of economy and security and interior, and everything is alright. But you will not change the basic structure of the state as if we had a constitution. For example, you have a president of the United States, and there are many things he cannot do, even if he wants to. You have to pass the Senate and the Congress, and you have a constitution that has been amended 27 times. In Israel, we have amended our Basic Laws that in the last five years, have been amended more than 27 times.
So this is the basic difference. So still, yes, the majority rules, but it depends on what. And what this government is trying to do is to eliminate all limitations on its power. They want to decide whatever they want. And this is something that, for me, is very dangerous.
Part of what makes Israel so great is that we are quick. We are able to pivot, we are able to improvise, and we’re able to change very quickly when necessary. And maybe part of that is the fact that we decided not to have a constitution. We decided not to have things pinned down in law. And so, yes, this government can pivot and change everything with 61 votes, but then the next government could do the same and change it all back, couldn’t they?
Yes, if we will have a new government. The populism in the world shows that after a country is not democratic anymore, it’s very difficult to change the government that is ruling. You just have to look at Hungary and Poland and Turkey and Russia to see what’s going on. And we do not want to be there. And if all these reforms pass, I think we will be, I think, even more extreme than Poland and Hungary because they are part of the European Community, and still they have this Iron Dome that is over the country that supports them still economically, for example. Israel will not be there.
I think that perhaps we are in a constitutional crisis, and perhaps this is a good time to rethink the idea of the constitution. This is the 75th birthday of Israel. When the country was established, the first Knesset was elected as a constituent assembly to give the country a constitution. In 1949, they were elected, these 120 people. They were not called the Knesset, they were called a Constituent Assembly. Okay, please write a constitution! But they did not reach an agreement, and the decision was, okay, we cannot. There were many reasons why, many reasons — a country that was at war — and the decision was, we will enact the constitution in stages, you know, like a salami, we will cut trenches.
You just mentioned that Israel is unique. And that was a genius idea. No other country in the world decided such a thing. But the idea was, we will enact a constitution in stages. Each chapter of the constitution will be called a Basic Law. And we have been doing that for years now, enacting all the chapters. We are almost there, but we never finished. And that is a problem.
Perhaps for this birthday, now that everybody in the street understands what is going on — and who would dream about it? You may sometimes go to protest because there is perhaps something concerning abortion. This is something that you understand and you can visually even view it in your mind. But when you go out to fight for democracy, for an override clause, for the independence of the judges, it’s so amorphous, it’s like a cloud. But still, people go out and people understand that something is wrong in the system and we need to fix it. And perhaps this is the time, perhaps an agreement can be reached. Not these reforms that give absolute power to the government, but something that Israel as a whole, the whole people can benefit from it.
Perhaps, the president will do that, let’s put up a committee to complete the constitution, and let’s make this the year of the Constitution of Israel. Perhaps something positive and not only negative. But it’s up to them to decide.
We should end the podcast here on a positive note, but we’re going to continue in any case. Now, no one is saying, or very few, I think are saying, that what we have now is perfect. In fact, if I’m not mistaken since the year I was born, 1975, there’s been an examination of judicial review. In the past several years, there’s been a calling for new legislation. And you yourself served on one of these committees. Tell us a little bit about this committee.
It was a committee actually proposed by former minister of justice Gidon Sa’ar. And this committee was proposed in order to write one of the missing chapters, which is the Basic Law on the Legislature, which will actually say that these Basic Laws have constitutional status and the Court has the power for judicial review and to deal with all the details of how many judges you need in order to declare unconstitutional law, etc., etc.
Everything that’s being discussed right now, essentially.
Exactly. But it was a committee in which only members of the coalition took part. And I was asked by the Labor Party to take their place. And there were two professors that were asked by parties. But I said, I’m not going as a member of… I’m not a politician and it’s nothing to do with politics. Even if [former Interior Minister] Ayelet Shaked from the right wing would ask me to come, I would have agreed. I went there only because I believe in this idea. But it only lasted a few months because the last government dispersed. And I think that the problem that this committee has is that no one from the opposition was there. Not the Likud or the religious parties.
Were they invited?
I think so. I think, but I’m not sure. But nevertheless, if they were invited, they said they would not come. And it’s a pity because a constitution cannot be done by a majority, by the idea of the majority rule against a minority. For example, one of our Basic Laws, which is perhaps one of the most important, the Basic Law: Nation State of the Jewish People, was passed by a majority of 62 versus 55. I think this is terrible because it means that the basic principle that Israel is the Jewish state, is the homeland of the Jewish people, it’s so important that you need a majority of 90 for that.
But why did the opposition say no? Because they decided not to mention the principle of equality and not to mention the principle of the Declaration of Independence and not to mention the principle of democracy. So they said, if you do not write these things that are so important for us, we will be against it. What is the outcome? Is it a good outcome that we have a chapter on the constitution that was passed by a very small majority? This is wrong. And I think the outcome of this commission, by Gidon Sa’ar, if it would have ended at the end with a proposal, it would not be a proposal of all the Knesset, of all the representatives of the people.
And I hope, therefore, that a new commission would be elected in order to do something for the people. Meaning that each and every one of them would be represented; each and every party in the Knesset now, including, for example, the Arab people, even if they do not agree, including the religious people. Even they say, okay, we have a constitution and we do not need anything other than the Torah, etc. But they have to be there. They have to take part. We have to write an ethos that is common to all the people of Israel. Otherwise, we will be separated. And this is not good.
You mentioned something right now that I think is very important: the very stratified nature of Israeli society and from where do they draw authority? You mentioned, of course, the religious sector that draws from the Torah. And it seems to me that a lot of Israel itself draws authority from external sources. Meaning we were built upon other people’s laws to begin with. We were built on the Ottoman system, we were built on the British system. And I just wonder what is the Israeli system and can we actually get there?
I think this is a very good question. I am not sure that I have the right answer to that question. Indeed, we were built upon things that the Ottomans left us and then the British system. But we have been enacting our laws for 75 years. And for me, the Declaration of Independence is the essence of the country. We are both Jewish and democratic, and this is the right order. We are Jewish and democratic. We’re not democratic and Jewish.
This is a Jewish country. It means that it will never be 100% democratic because democracy has to give place to the Jewish system. It means that perhaps some of my rights will not be protected because of the Jewish interest. And I am fine with that. I think that it’s great to live in such a place. And we will not be 100% Jewish. And I’m sorry for all the Orthodox, who think that we should be a halachic country. We will not be there because we have to give the place to democracy. And what Israel has been doing, and I think with great success over the years, is a fine balance between both values. And these are the values of the state. This is my constitution.
As you mentioned they were set out already in the Declaration of Independence. So then why did we need a Basic Law afterward, another chapter for the constitution?
Because the Declaration of Independence is not built and is not written as a constitution. A constitution is something that first of all, it’s like you have to explain the rules of the game or rules of football or soccer to somebody else. You have to explain to people around the world and in Israel the rules of the game and who are the players. You have to explain what is the Knesset and who elects the Knesset and how it works and what is the government and how it works, and the president and the state comptroller, and the army. And so you need all these chapters, and they were not there in the Declaration of Independence. And of course, you need a very good bill, a charter of human rights, which we do not have, and it has to be completed. Even if some of the rights, we will say, everybody has the right to freedom of religion, but it will be protected as long as it does not conflict with the Jewish state. It’s okay. It’s okay that my right to religion is different from an American or a Frenchman. It’s okay. It’s fine for me because this is my country and it’s a Jewish country. It’s not a secular country. It’s okay to have limited rights in certain things.
And I think it’s very easy. It is not difficult to come to an agreement upon these two ideas, an agreement between all sectors of society. We have to recognize minorities. We have a 20% minority living as a minority that was born here and has its rights. And we have to accept their rights. Not all the rights, of course, because it’s a Jewish country, but their rights that they are equal not only to vote but equal in what they need. For example, in the village and the roads, infrastructure. And we have to understand that we have religious people living among us. And there are things that I cannot even think of doing. It’s like entering with my car on Sabbath or something like that, or going in a way that is not suitable to the Kotel [the Western Wall]. It’s okay. Even if you have the right of freedom, of…
…Taking all your clothes off like a woman did this week at the Western Wall.
I did not like that. I’m sorry about that, but I did not like it. You have to understand your neighbor. We are all neighbors. You have to understand, you have to respect. And that’s basic. And it’s something that we are losing these days. We are seeing too much hatred. And for me, it’s also something that is dangerous for me, because I think one of the most important things in this country is the solidarity between its people. When something happens, we are all one family, and we have to remember that all the time.
Even if I am demonstrating tomorrow or Saturday, I am not demonstrating against any other people that believe that it’s good, this reform. I’m not demonstrating against them. I am asking, do not pass this reform because it’s dangerous for democracy. Do something else that is good for all the people. And this is something that we’re not talking about enough, about the separation of people, the splitting into groups. You are for Bibi [Prime Minister Benjamin Netanyahu], you are anti-Bibi. You are left and therefore you are a traitor. And you are right, therefore, you are, I don’t know, an ape. This is something that it is all deteriorating into, and I think it’s very bad and somebody has to stop it.
So, tribalism in the Israeli or Israelite culture is nothing new. And the question is, you have this vision of a constitutional congress, a committee. Can we even sit in one tent anymore at this point? And who could be the “King David,” the “King Solomon,” or whoever?
I think perhaps a former president, like [Reuven] Rivlin, or perhaps this president [Isaac Herzog]. And I will answer that question. If I go to this Congress or the Federalist Papers in Israel, when I come back, I will tell you if we may sit at one table. I hope yes, I have been talking a lot over the past weeks and months, and years with colleagues from completely different views, and I think we have 80% in common, so it’s enough for me.
That is remarkable, 80%?
Yes, I think so. But something is wrong in this reform that only wants more power and wants power with no limits because they have special interests that have to be passed through laws and they do not want the Court to interfere. Something is wrong because it deals only with power. It does not deal with what Israel really needs concerning, for example, the judicial system, which needs to be amended. Yes, for years now. But they’re not talking about it. They are talking only about power. We want more power. And if you want to talk about the things that Levin put on the table, or [head of the Constitutional Committee MK Simcha] Rothman, they are all talking about the same issue. We want an override clause. We want to override the Court. If the Court rules that this law is unconstitutional, we do not want somebody to tell us that our laws are unconstitutional. And we do not want the Court to declare that decisions by the government are not reasonable. We want a statement that says that everything that a government does, it’s always reasonable, even if it’s corrupted. We do not want them to interfere and we do not want the Court to deal with amendments to the Basic Laws because we want the Basic Laws to be immune from any judicial review.
This makes me, of course, smile, because what is a Basic Law? It should be a chapter of the Constitution. But how do you amend it? How do you pass it? By a simple majority in the Knesset, as if it was a regular law. You only call it a Basic Law –and there is a Basic Law.
If you want to deal with cats walking on the streets in a regular law, you can create a Basic Law on cats, it’s no problem. The Court should be able to see if this is a misuse of this constituent power.
So they want just the power, but they’re not talking about what needs to be done, meaning that we need to, for example, deal with the procedures in criminal and civil cases that in Israel take so long. So long. For example, the case of Benjamin Netanyahu. The indictment was filed more than three years ago and the investigation began three years before. So we are already in the sixth year of the case and we are still in the hearings of the witnesses in the District Court. It will take another two years perhaps to finish the District Court and another two years in the Supreme Court.
Come on, this is not justice for me. This is something incredible. And it should not be possible in a country like Israel, a developed country, a startup nation. We need to deal with that. We need more judges, we need another court between the magistrates and the Supreme Court. But nobody’s talking about it.
I think our listeners need to be reminded that the Supreme Court has two functions. Tell us exactly what they are.
The Supreme Court of Israel is one court. It’s actually the Supreme Court of Appeals of the State of Israel, meaning that all cases, all of them that start, even criminal cases or all kinds of cases, civil cases that start in the Magistrate Court will actually go to the Supreme Court for appeal. So they hear about 10,000, 12,000 cases per year, 15 judges. I don’t know about another court that works like that. And also it’s the High Court of Justice of Israel, meaning that every petition that has to do with our rights, that the government perhaps infringes upon them, will go directly to the Supreme Court by a different procedure. But it’s the same court with the same judges. And this is something that perhaps was very good for 1949, 1950 or 1960. But we are a country that loves to go to court, and therefore we need an accord. We need much more judges. But this is something that the reform does not deal with, unfortunately, and it should deal with.
We began our conversation by talking about what Princeton University Prof. Kim Lane Schepelle called the “Frankenstate.” And how the Frankenstate takes pieces of democratic appearing procedures from one place and the other in order to create more erosion of democracy. And do you see that happening with the proposed judicial reforms? Because I hear, well, Canada has an override class, or, well —
Only Canada. And in Canada, the override was actually put on the charter for a completely different reason. Israel is a specialist in what we call cherry-picking. So we take the Norwegian law on ministers and we will have the French law on the immunity of the president or the prime minister. And we take the override from Canada and the two-year budget from Bahrain and so on and so on.
This is something unheard of because you do not do cherry-picking from different countries because each and every country has its own model. And I think what is most important, it’s own culture. If you want to use the comparative overview, it’s very important, but it’s just for seeing what other people are doing, how it works, not to import it, not to make this arrangement, to make “Aliyah to Israel.”
Because you cannot take something from Canada without the checks and balances from Canada and the separation of powers in Canada, or take the hearings of the judges at the commissions in the Senate from the United States without bringing also the Constitution of the United States, the separation of powers of the United States, et cetera, et cetera.
And this is something that I think slowly people are being convinced that it’s not right to do. We need to develop our system from the culture of Israel, from the system of Israel, and from what we need to do according to the rules of Israel. We’re not going to bring something completely new. It’s not, I think it’s not only not fair, but it’s also not right. It will be like you have an implant or something that is completely alien to your body — or to the body of law in Israel.
You just choose your country, whatever you want. But bring all the system, all of it. Bring us the British culture, but not this cherry-picking.
Prof. Suzie Navot, thank you so much for your time.
It’s a pleasure. Thank you.
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