The deterioration of liberal democracy has become a global phenomenon and, one by one, countries in different parts of the world have fallen victim to assaults on such. Israel is only the latest victim of an attempted attack.
However, civil society’s mobilization against such moves may teach us how to deal with slow-moving authoritarian tendencies.
The Fundamental Law of Hungary initiated by the government of Viktor Orbán, which passed in only nine days and without much public discussion, reduced judges’ retirement age from seventy to sixty-two, forcing almost three hundred judges into retirement. With a parliamentary majority, Orbán could pack the courts with loyal judges. Hungary’s system of constitutional courts was established in 1990 after communism collapsed and interpreted laws and rights according to constitutional principles, following the spirit of the European Union. Orbán’s Fundamental Law annulled rulings that helped define and protect these fundamental rights.
In Poland, the governing Law and Justice Party (PiS) attacked the Polish courts by claiming they represent an elite whose decisions often do not align with the majority's will. Like in Hungary, the PiS removed judges by reducing the age of retirement. The Polish government attacked the constitutional tribunal, which protected the democratic process and limited executive and legislative power. It refused to recognize elected judges and publish constitutional courts' opinions and judgments. The PiS also proceeded to control the public prosecutor's office and politicized the national council responsible for nominating judges.
In Turkey, the Justice and Development Party (AKP) government moved to control the courts by passing amendments to expand the size of the constitutional courts and increase the number of Supreme Court judges and prosecutors. Those amendments aimed not to strengthen these institutions but to pack the judiciary with AKP ideologues.
In Argentina, the then-president and now vice president, Cristina Fernández de Kirchner, introduced the concept of “democratization of the judiciary,” which in spirit has nothing to do with real democracy. Upon taking office in late 2019, President Alberto Fernández and Vice President Kirchner accused the judiciary of being political and unsuccessfully introduced a broad judicial reform to expand the number of federal courts in Buenos Aires from twelve to forty-six. This sharp increase would have allowed Fernández and the Peronist-controlled Senate to appoint many new judges loyal to the party. The president also appointed a commission of experts that proposed other changes to the judiciary, including creating new tribunals that would reduce the influence of the Supreme Court.
Along the same lines, the Fernandez-controlled Argentinean Senate voted to remove judges deciding on corruption cases involving Kirchner. However, a Supreme Court ruling managed to postpone it indefinitely.
Likewise, Fernandez initially refused to comply with a Supreme Court decision that forced the government to return federal money to the city of Buenos Aires (The president refused to give the city of Buenos Aires, which is not a district that typically votes for the president's party, federal money the city was entitled to). Fernandez was also particularly hostile to the tribunal after his vice president was found guilty of corruption. The president helped mobilize the masses after a federal criminal court sentenced Vice President Kirchner to prison for fraud and corruption. The vice president claimed she was a victim of lawfare orchestrated by the judiciary. The president, the vice president, and their allies sarcastically call the courts "the judicial party" as if the courts did not represent independent institutions of justice but a political party that serves the interests of the opposition. Last year, again unsuccessfully, the president proposed to pack the court by increasing the number of Supreme Court justices from nine to twenty-five.
Early this year, President Fernandez publicly called to impeach four members of the Supreme Court, accusing the high court of abusing its power when it forced the government to return federal funds to the city of Buenos Aires. The impeachment is not likely to occur because there is not a majority to approve it. However, the fact that the president openly attacks the high court is a distressing act of illiberalism, if not authoritarianism.
In Israel, a coalition government-proposed judicial reform would allow for a simple majority vote in the Knesset, Israel's unicameral parliament, to revoke Supreme Court decisions.
The proposed reform would enable an “override clause” to eliminate judicial review of legislation and would change the makeup of the Judicial Selection Committee to ensure the government controls the appointments of judges and justices. Likewise, it would weaken the criterion of "unreasonableness" the Supreme Court occasionally uses to oversee and intervene in executive orders.
The separation between the executive and legislative power is nonexistent in Israel because Israeli law requires a parliamentary majority to form a government. Therefore, weakening the Supreme Court would open the way to an unchecked government—an absolute power.
Thus, Israel has been on the way to joining the nations moving in the direction of illiberal democracy. The official rhetoric looks as if it were taken from the Kirchner playbook: since judges do not constitute an elected entity, they do not represent the majority's spirit and sentiments.
But by rebelling against that move, Israelis have made an enormous difference. More than a million people have taken to the streets to demonstrate in front of the parliament and government offices. Centrist and left-wing parties, individuals from the right, academia, doctors, reservists, trade unions, professional associations, and many others who make up the fabric of society have participated in the protests.
The same social networks that united Israelis in times of war have connected them in the face of an attempted government power grab. This has created schisms within the governing Likud party, forcing it to seek a pause to open a dialogue with the opposition.
The judicial overhaul is still on the table, and the government’s proposal represents a severe crisis. But on the other hand, the Israeli people— its officers, doctors, and its productive force—have stood up to the government assault. Israelis have proved willing to challenge their government even amid widespread Palestinian terrorist attacks. Furthermore, to defend democracy, reservists have been ready to refuse army service in a clear message to the government that the state is not the rule of the elected, and that the state must continue to guarantee citizens' rights and protection of political minorities.
As illiberalism spreads throughout the world, the courts, along with the media and the political opposition, are the first victims. It is difficult to reverse the process when society remains passive in the face of slow government movements toward authoritarianism. The people at large will be the next victims. It is enough to see the blood, torture, incarceration, and purges that Venezuelans, Turks, Nicaraguans, and others are already experiencing.
Illiberalism is the spirit of our times. Even in Europe and the United States, illiberal forces have gained ground.
The Israelis, this time, provided a counterexample. This time is not about how to fight terrorism or develop state-of-the-art technology but how to avert, from the outset, attempts at destroying democracies in slow motion.
Luis Fleischman, PhD, is co-founder of the Palm Beach Center for Democracy & Policy Research, and professor of Social Sciences at Palm Beach College.
Image: Roman Yanushevsky/Shutterstock.