Temporary Constitutional Amendments as a Means to Undermine the Democratic Order - Insights from the Israeli Experience

Abstract

This paper focuses on the employment of temporary measures within the generally-rigid constitutional sphere. Commentators frequently contemplate the extent to which temporary constitutional measures are adequate and necessary within an intended-to-perpetuate constitution. On one hand, some writers praise temporary constitutionalism, claiming that it allows flexibility and relieves the counter-majoritarian difficulty. Others however emphasize the devastating impact on the constitution’s status and legitimacy as a result of intense implementation of temporary measures. This paper contends that however beneficial it may be in some cases, temporary constitutionalism should be scrutinized with great suspicion, especially when it is employed in weak constitutional regimes. Through outlining the history of temporary constitutionalism in the state of Israel, this paper illustrates how temporary constitutional amendments can be harnessed to undermine the democratic order. The Israeli employment of temporary constitutionalism since 2009 reveals a new underexplored manifestation of “abusive constitutionalism”, called here “abusive temporary constitutionalism”. With abusive temporary constitutionalism, incumbents can entrench their power against their opponents, while avoid both horizontal and vertical accountability for their actions. Finally, by drawing conclusions from the Israeli experience, the paper outlines several signifiers and preventive measures allowing future constitution drafters and judges to monitor and suppress the development of abusive employment of temporary constitutional amendments.