In comparison to 66 democracies, Israel was the only state that lacked any structural political limitations on the legislative branch, Professor Amichai Cohen found in a 2019 comparative analysis of the checks and balances and a proposed Override Clause -- and with the proposal of the judicial reforms by Justice Minister Yariv Levin in early January, the potential for the centralization of power in Israel could get worse.
"Israeli democracy, or the Jewish and democratic state, has a very special political structure in relation to other democracies, it is a political structure in which all political power is concentrated in the hands of a very few people," Cohen, a senior fellow at the Israeli Democracy Institute, explained to The Jerusalem Post.
Cohen called the concentration the "nucleus of control," and explained how there is currently no separation between the government and the Knesset, with the same "nucleus" of people controlling both.
"This is the same small group of people who are the heads of the parties of the coalition," said Cohen. There was no local authority that balanced this out of this lack of separation. Cohen made the distinction that it wasn't even the government that had all the power -- it was the ruling coalition.
Power laying with "a very small group of people is a very unique thing in democracies, usually in a democracy the power is more distributed, no decentralism is a very unique thing."
While during the debates about the new reforms, Israel has received comparison to states like the United Kingdom, which also doesn't have a formal institution, Cohen notes that it has many checks and balances in place.
"It is not really so concentrated -- first of all they have the "devolution," the devolution of powers to Scotland, to Northern Ireland, to Wales. They also have local elections that greatly strengthen the individual members of parliament, who can rebel because in fact, their legitimacy did not come from the party leader it came from their constituency."
The only real check in the Israeli system was the High Court, and this check could soon be removed.
Cohen's book
Cohen's 2019 book, Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government, looked at seven of the main forms of structured political limitations. These limitations were a supreme court with the power of judicial review, a bicameral legislative system, a president with executive powers, a federal government, regional elections, membership in a regional supra-governmental organization, or acceptance of the International Court of Justice's authority.
Six of the 66 countries reviewed had at least five structural checks and balances, 8 had four limitations, 16 had three, 26 had two limitations and 10 had just one restriction. Assuming Israel introduced the Override Clause, it would be the only country out of 67 reviewed in the book that had none of the six common structural restrictions.
When asked if Israel was the only democratic state with such a level of checks and balances, Cohen suggested that New Zealand might be comparable, but it was debatable.
The problem with a lack of checks and balances, Cohen explained, was that fewer restrictions meant there was a greater chance that power could be abused to remove opposition. He emphasized that he wasn't saying that this would indeed occur in Israel, but the chance that it could happen would increase.
Of the 66 states reviewed, three had some form of Override Clause. With Levin's proposal, Israel would be joining a very small club of democratic states. An Override Clause allows for the legislative branch to vote down a ruling by the state's supreme court. The Israeli version proposed in early January would allow for the Knesset to strike a High Court of Justice ruling with just a simple majority of 61 votes.
During the reform discussions in the Knesset Constitution, Law and Justice Committee, Canada has repeatedly been cited as a country with an Override Clause, but Cohen notes that Canada has many other structural limitations on power, such as a federal system with provinces.
If Israel were to introduce an Override Clause, Cohen suggested that a more reasonable system would have its implementation not by simple majority, but by two-thirds. This would put a structural restriction on the power of the ruling coalition, forcing it to work with the opposition.
There had been a significant change in the discourse since Cohen first wrote his book.
"What has changed is that now they are not only thinking about the override clause, only about the Override Clause," he said. "They are thinking of taking control of the court itself by creating a committee to select judges, that the politicians control it."
If the reform passed, it would essentially integrate the court into the government, and thereby the ruling coalition.
While this system was compared to the United States of America's judicial selection process, Cohen noted that even in the US judge selection was not completely unilateral -- the president had to seek approval from the Senate.
Cohen suggested that even a proposal to include opposition members in the judge selection committee could improve the checks on the coalition's power.
Israel could also introduce other checks into its system to improve its democratic stability. Cohen suggested more power afforded to local authorities.
In Israel, the local authorities are very weak, most of their money comes from the government and local taxes are relatively very low," said Cohen. "If there were strong local authorities, that would be a kind of solution."