Ed Note: We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the second response in the series, by Professor Rivka Weill.
As a shocked world witnesses lame-duck President Donald Trump refuse to accept Joe Biden as the President-elect, I would like to reflect on the experience of two younger democracies with transitions of power. What role may courts play in safeguarding democratic transition of power?
Tarun Khaitan’s “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India” offers a comprehensive account of the methods Prime Minister (PM) Narendra Modi and the BJP utilized between 2014 and 2019 to guarantee their continued grip on power over India. Khaitan describes how Modi and the BJP weakened, or captured through appointments, the democratic mechanisms needed to ensure the executive’s accountability and to prevent incumbents from entrenching themselves in power. The BJP has already accumulated power to the extent that it no longer needs a coalition to rule. Khaitan’s project is mainly descriptive and driven by concern over the fusion between the BJP and the state. Khaitan, like many other authors, treats this democratic backsliding of India as part of a global phenomenon underway in countries as diverse as “Poland, Hungary, Turkey, Brazil, South Africa, and Israel”(p.50). He does not distinguish between parliamentary and presidential systems in his analysis of the phenomenon.
Of the many tools employed by the Modi administration, I would like to focus on three that are of special relevance in parliamentary systems: i) the misuse of the budget power, ii) the abuse of the power of the speaker of the lower house, and iii) the attempts to curtail the lower house’s power to express no-confidence in the administration. Khaitan’s account suggests that the judiciary did not play a role in checking these abuses of power.
While the nature of pure presidential systems requires separate elections for the executive, divorced of legislature’s control, in parliamentary systems, the people’s vote for members of parliament indirectly determine the identity of the executive. The executive needs the confidence of the legislature to rule. In parliamentary systems, we expect that the majority in parliament will determine the identities of both the speaker of the legislature and the executive. Parliamentary systems also typically require the government to actively prove at least once a year that it maintains parliamentary confidence through the passage of the budget law. If the government does not muster the majority to pass the budget, then it reflects lack of parliamentary confidence. This, in turn, leads to the fall of the government, and possibly elections, if no alternative government musters the support of the legislature. In pure presidential systems, in contrast, if the legislature does not approve the budget, it may lead to the shutdown of the government. The president’s job, however, is secure. In fact, the legislature may be hostile but cannot oust a president on a vote of no-confidence unless impeached for a serious cause. In presidential systems, it is natural to have divided government scenarios in which the executive is under the control of one political party, while the speaker of the legislature is in the hands of a different political party. It is, thus, only in parliamentary systems that tinkering with budget laws, powers of the speaker and non-confidence votes, has a direct and immediate effect on the entrenchment of incumbents in power in a way that frustrates the constitutional design.
Both India and Israel are parliamentary systems that became independent of British rule around the same period: India in 1947 and Israel in 1948. While India is the largest democracy, Israel is a small country by size and population. Correspondingly, India has a federal system with a bicameral legislature at the federal level, while Israel is a unitary state with a unicameral legislature. India has a majoritarian election system (FPTP in single-member constituencies) that has nonetheless produced multiple parties in the legislature with coalition arrangements in the executive. Israel adopted a proportional representation election method, under which no government has ever gained the confidence of the legislature without a coalition of at least three diverse political parties. Both states are struggling to contain internal conflicts over national identity, territory and religion. It is, thus, interesting to reveal the different ways that the judiciary in both countries treats its role in guaranteeing transition of power.
On two separate occasions in recent years, the Israeli Supreme Court intervened to protect accountability mechanisms from threats that would hinder the smooth transition of power. In 2017, in the Academic Center for Law & Business v. the Knesset, the Court declared its intent to invalidate the Basic Law: The Budget (Temporary Provisions), should the Knesset (Israel’s legislature) re-enact it. The Court treats the Basic Laws as Israel’s supreme formal Constitution though they are enacted via the same process as any other legislation. This Basic Law authorized the Knesset to enact a budgetary statute that would cover a two-year term. The Basic Law was temporary in nature and any additional two-year budget would have required a re-enactment of the Basic Law. The Court held that it was a misuse of the Knesset’s constituent power to enact a temporary rather than a permanent Basic Law. The Court also criticized the content of the Basic Law in dicta. In enabling a two-year budget statute, the Basic Law circumvented the need in a parliamentary system to actively check every year parliamentary confidence in the government through an annual budget. This in turn diminishes built-in mechanisms in parliamentary systems of enabling the opposition to topple a government.
While the desire to protect the link between budgetary laws and non-confidence votes in a parliamentary system motivated the Court, this decision is highly problematic. The processes of enactment of temporary and permanent Basic Laws are identical in Israel. The Court utilized the doctrine of “misuse of constituent power” to reach this decision, holding that temporary provisions are inapt for a constitution. It hesitated to base its decision on the doctrine of the “unconstitutional constitutional amendment.” However, it did not acknowledge that the doctrine of “misuse of constituent power” involves greater assertion of judicial power than declaration of unamendability, since it constrains the very power to adopt a constitution to begin with. Moreover, by providing for a two-year budget, the Knesset did not relinquish its power to vote non-confidence in the government. When the opposition votes on non-confidence motions, the vote must pass with the support of 61 out of 120 Members of Knesset (MKs). To pass the budget, the government must either muster a majority of 61 MKs or hold elections. The difference between the two mechanisms is who carries the onus of mustering the majority. Many statutes and regulations pass the burden of enacting a measure from coalition to opposition. Thus, supra-constitutional law principles should not have been used in this case.
In April 2020, in the Yuli Edelstein decision, within 24 hours of hearing a petition, Israel’s Supreme Court ordered the Speaker of the Knesset to hold an election for a new Speaker within the following 48 hours. The Speaker, Yuli Edelstein, openly defied the Court’s order. He waited to the last minute and announced that he cannot conscientiously abide by the Court’s decision, and therefore resigned to prevent a “civil war.” While the Court anchored its decision in the need to enable a majority of MKs to replace the Speaker after the March 2020 elections, Edelstein argued that, according to the letter of the law, he may hold the vote at any time till the formation of a new government. He further argued that, since under Israeli law, the Knesset may not remove the Speaker unless 90 out of 120 MKs supported impeachment for cause, it is better to wait if there is doubt about the eventual composition of the government. Many scholars suggested that this decision manifests the Israeli Court’s willingness to strengthen the legislature in its relations with the executive. In a forthcoming article, I argue that the motive for the Court’s decision was different. As aforementioned, in parliamentary systems, we expect that the same political parties will control both parliament and the executive. The Court was rather motivated by the fear of a coup d’état. The Court only hints at this concern in the decision in passing, suggesting that there is a risk to the orderly transfer of power.
To understand this concern, we need to understand the context. Benjamin Netanyahu has been the PM of Israel since 2009, heading coalitions of different parties over the years. At the time of the decision, there seemed to be a majority of MKs in support of his replacement. Yet, hiding behind the Speaker, Netanyahu seemed to hold on to power. At the time of decision, there were demonstrations of the “Black Flag” movement, protesting Netanyahu’s rule and portraying it as undemocratic and illegitimate. In light of Edelstein’s actions, some op-eds even suggested that a coup d’état was taking place . The Court rushed to act to save Israel’s democracy. In hindsight, there was no coup d’état to prevent. The Edelstein decision contributed to a major realignment of the political arena, in which Benny Gantz, whose party petitioned the Court, joined Netanyahu to form a government. Had the Court known what we know today, and what Edelstein probably knew in real time, it is questionable whether it would have intervened.
The experience of the Israeli Supreme Court suggests that courts may only play a very partial role in guaranteeing democratic transition of power. In fact, at times, the judicial involvement may have unforeseen, and even bad, consequences for democracy in the long run. As Khaitan argues, courts matter but only within a framework of other robust democratic actors. Democracy is not a one-time decision of society during its founding moments. It is a constant exercise that requires the active involvement and sacrifice of the citizenry at large.
 For elaboration on the nexus between budgets and non-confidence, see Rivka Weill, Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care, 30 Berkeley J. Int’l L. 349, 365-67, 378-81 (2012); Rivka Weill, From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483682.
 For an argument that a constitutional clause authorizing a ban on political parties may be read as an implicit eternity clause and as a basis for the basic structure doctrine, see Rivka Weill, On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties, 16 Election Law Journal 237 (2017); Rivka Weill, Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide, 40 Cardozo Law Review 905 (2018).On the various ways to anchor supra-constitutionality principles in Israel’s Constitution, see: Weill, Hybrid Constitutionalism, supra note 1, 391-406.
 Rivka Weill, The Yuli Edelstein Decision: A Charged Encounter between Politics, History and Israel’s Structural Constitution, Tel-Aviv U. L. Rev. (forthcoming)(in Hebrew). Some of the ideas I discuss in English in “Israel’s Unfolding Democratic Crisis—Recent Constitutional Challenges and Rulings Explored,” April 28, 2020, https://www.youtube.com/watch?v=clPb7cDiTiY.