What is the meaning of the word democracy? Where does it come from? Let’s take a look at the root of the word, which is Greek.
Dêmos in Greek means ‘(common) people’ and Krátos means ‘force/might’. Hence, democracy literally means: Might (governance) of (by) the population (citizens).
Notice that it doesn’t say governance by the Supreme Court, or by the journalists of the mainstream media, or by the CEOs of social media. No, No, No, it says governance by the people. This means, you, me, the next door neighbor, everyone we meet on the street. We are the bosses of how the country should run. THIS is what democracy means.
This begs the question: “How can we know what is the will of the people?” In Ancient Greece it was easy: the citizens of Athens would meet and the various orders at hand would be presented and whatever majority a specific subject would get, would then be implemented.
This is highly impractical when you have countries of millions of people and millions of square kilometers. That is why most countries today have a representative democracy where the population chooses its representatives through a nationwide vote and the party with the vision that is the closest to the majority of the citizens gets to form a government and implement that vision for a specific length of time (usually, 4 years).
When a party does not get a majority, it tries to form a coalition with other parties that have the closest in views to it and form a coalition. If before the end of the four years differences grow so much that one of the parties turns against the coalition, the government falls and we have new elections.
All that I have said until now is nothing new and even the person who has the most superficial knowledge of politics should know these things. Yet, the fact that I need to write an article about it shows that this knowledge isn’t as ingrained in Yisraeli society as one might think.
Also take notice that at no point did I even mention the Supreme Court. There is a reason for that, because while it is important in modern democracies, if we take the term in its narrow, Athenian sense, the Supreme Court (to differ from other courts) isn’t even in the picture.
I’m not saying it shouldn’t be. In today’s world, a democracy without a Supreme Court is unthinkable, even dangerous (I’m going to explain why), but democracy means power to the people and their elected representatives. Anything other than that IS NOT democracy.
Now, why is a Supreme Court so important to a fully functional democracy? To answer that question, we should take a moment to consider why courts in general, are so essential to a fully functional society.
This is what our holy Torah has to say on the matter: ” You shall set up judges and law enforcement officials (police) for yourself in all your cities that the Lord, your God, is giving you, for your tribes, and they shall judge the people [with] righteous judgment.” (Deuteronomy 16:18)
While we Jews consider the laws of the Torah applicable only to the Children of Yisrael, there are seven laws (called the Noachide laws) that every non-Jew on planet earth should observe, and one of those laws is the obligation to establish courts of laws, i.e., every society should conduct justice through courts and not live in a state of anarchy where everyone decides his own course of action.
Let us be clear, everyone in Yisrael, who criticizes the Supreme Court is not, IN ANY WAY, saying that we should just get rid of it. Courts are the backbone of a functioning human society and without courts and law enforcement, there would be no justice and without justice there is no hope and without hope, mankind has no future.
Just a small example to show how vital and critical law enforcement is. In 2005, after the hurricane Katrina, the city of New Orleans was a few days without law enforcement until the US National Guard stepped in and in that short amount of time, the city had already descended into chaos.
Most countries, having taken a cue from the US, have what we call a constitution, a document that details the basic guidelines the society wants to adhere to and the laws decided can never go against it, unless the constitution is amended by a special majority.
This is where the Supreme Court steps in.
Unlike lesser courts, the Supreme Court deals with decisions made by the state and in case there is a question mark about a certain law, if it goes against the constitution or not, it tries to interpret the law and gives its conclusion which the state accepts. If a law proposed by the legislators goes against the constitution, they must revise it so it can be formulated in an acceptable way which does not go against the core principle which society has decided to follow.
That is the main role of a Supreme Court and its (vital) part in the pyramid of power. They are the ones who make sure that the elected representatives and the government follow the basic guidelines which society has decided upon and clear the air if there is uncertainty.
Most democracies today have the pyramid of power structured thus: On one side, the elected members of the House of Representatives (here in Yisrael it’s the Knesset). Their role is to pass legislation that, of course, affects everyone of us.
The second one is the government whose role is to implement those legislations as well as rule and pass and apply decisions in every facet of our lives, economy, military, education, transport, immigration, agriculture and so on.
Finally, the Supreme Court is, as we said, the arbitrator of the judicial decisions and their understanding of the law is the guideline for how they should be applied by the government.
In a normal democracy, each of these 3 parties have their specific roles and should not step on each other’s toes.
The Knesset cannot apply the laws they vote on (that’s the government’s role), the government cannot pass those laws alone (they must be voted in the Knesset), finally the Supreme Court cannot pass a decision on the composition of a coalition or strike down laws that have been voted by the representatives of the people, if those laws do not go against the constitution, or in the case of Yisrael, which does not have yet a constitution, the basic laws (Houke Yessod in Hebrew).
Now we get at the heart of the Yisraeli problem. For some reason, the Supreme Court has taken upon itself prerogatives that any normal democracy should not accept and for some reason, a large part of the establishment has let them go unchallenged for 30 years and they now are reluctant to have them put back in their place.
The main complaint of the Left is that you can’t let the majority decide on whatever they want.
Humm, yes, that’s EXACTLY what the word democracy means, the rule of the majority. If we have the rule of the minority, it’s called dictatorship, NOT democracy. So, when the Supreme Court strikes down laws decided by the majority to please the minority, it’s called a judicial dictatorship, NOT a democracy.
Since 1977, we had for most of the time, a right or center right government, the majority in Yisrael is CLEARLY on the right, yet, the Supreme Court decisions have systematically neutered the right and forced it to adopt a center left policy.
I’m sorry but this can’t be in any way democratic. In case people forgot, democracy is the rule of the majority and anything else is not.
The Left claims that the Supreme Court is necessary to defend the rights of the minorities. The Supreme Court is not Mother Theresa, its role is not to ‘defend’ anyone. Its role is to make sure the laws voted do not go against the constitution (or basic laws) that form the backbone of our society and the basic guidelines so the liberties of everyone are respected.
Their role is to uphold the law, not to play favorites for a group of people.
Another complaint I hear a lot about the reform that the new Minister of Justice Yariv Levin wants to pass is that it is necessary that Judges have a say in whoever is elected to the Supreme Court and we cannot let only politicians decide because otherwise the Judges of the Supreme Court would be pawns of the government and would lose their independence, which would bring us to a dictatorship.
This would be true if that were the case, but the fact is that every other country on planet earth chooses the candidates for the Supreme Court in an open forum made exclusively of politicians and none has become a dictatorship yet.
That’s because there are multiple fail-safes to this very possibility. For example, that a sitting judge of the Supreme Court cannot be in contact with a sitting member of the government (except in formal circumstances and during the appointment of other judges), or that once nominated, the President (or Prime Minister) has no say on the decisions passed and cannot in any way fire a sitting judge.
You see, for someone to be a pawn of someone else, that someone else needs to have leverage. If they have not, since they can’t fire you, even if your decision goes against their wish, there is no leverage. Therefore, when the heralds of apocalypse from the Left claim that the Supreme Court will become a puppet of the Right, what they really mean is that more judges with a right leaning view will be introduced and the Left will lose its judicial monopoly.
Of course, when a judge is named to the Supreme Court, it is vital that his/her separation from any political entity should be total and that IN NO WAY, any political actor can have a hold on him. Those are the necessary steps to take since the judges are elected by politicians.
But they SHOULD BE elected by politicians. Remember, these are a small group of people who hold tremendous power since they can decide the judicial venues of laws passed by the people elected by the citizens. These judges have not been elected. Yet, they hold such a crucial power. It goes against everything democracy stands for. The least that can be done is to have the elected representatives choose them and not their friends from the Supreme Court or from the Bar Association.
This is more or less the case today as there are on the Judicial Selection Committee 3 judges of the Supreme Court and 2 members of the Bar Association, 2 members of the Government and 2 other Knesset members.
If the judges and lawyers band together (which is most of the time), they have a veto over who is nominated.
For the life of me, I cannot understand the people who are ok with the Justices choosing themselves.
Another serious point of contention is the desire of Yariv Levin to get away with the decisions based upon ‘a reasonable outcome’.
While this concept does exist in British law (which is the basis for our own), and is applied in the common law, here in Yisrael, the Supreme Court uses it extensively for decisions that affect the political realm.
Just a small example is with the head of the party Shas, Aryieh Der’i.
I won’t go into details, but he has been accused and convicted of a string of financial crimes but the charges were dropped, except for ‘Tax Evasion’. He agreed to leave political life and he got a one year suspended sentence.
He is now about to be named Minister of the Interior and Minister of Health. There has been an injection to the Supreme Court and if they rule that his crime included ‘moral turpitude’ (kalon in Hebrew), he will not be able to serve as a minister.
Gali Baharav-Miara, the Attorney General, has said that she cannot defend before the Supreme Court the nomination of Der’i because it is a nomination that is ‘extremely unreasonable’.
I’m sorry but what? What has ‘reasonable’ anything to do with it? Either he is not fit for office, or he is. There is no ‘reasonable’ here, it’s a ‘he is’, ‘he isn’t’ type of case.
Just to be clear, I am not a Shas voter but the overuse of reasonable just to be able to have an effect on the political process is simply astounding.
The concept of reasonableness has always been meant for the common law, not for political cases since they depend on the choice of the voters, reasonability has no place here.
If someone has committed a crime that includes moral turpitude, he cannot represent the people and should not even be allowed to run. If he hasn’t, the court has NO RIGHT whatsoever to interfere in the choice of the people. That is just not in any way something that they should have the right to utter an opinion on. It’s absolutely not their role.
An example where the concept of reasonability is applicable. Someone has the right to get a certain service from a government agency, but they put him on a list for months ahead and when his turn comes, he won’t need that service anymore. He turns to the court who says to the state: “It is unreasonable to expect the citizen to wait until a time where the service won’t be needed, therefore, the courts order the state to find a way to give this service before.”
From what I heard, the reform wishes to completely do away with the concept of reasonableness but I do hope that they will find a way to keep it in cases where it has its place but terminate it for decisions which affect the political scene. I see this as an excuse for the judges to influence the political landscape since they use that vague term any time that they don’t have a clear and present way to convict a politician which, OH COINCIDENCE, is always on the right side of the political map.
Funny how these things work.
I have seen the interview of the former head of the Supreme Court, Aharon Barak, the one most associated with the phase of blatant activism from the Justices in the 1990’s and it was quite pathetic.
He tried to convey the image of the frail old man, who only had the good of the country before his eyes and always was open to some reform of the Supreme Court, as long as it was made in consensus.
But that does not sit with the facts on the ground. Even the journalist interviewing him, Dana Weiss, no fan of Netanyahu or the Right, told him that during his tenure the court was of a very specific composition (Ashkenazi and openly Leftists) and that only changed, a little, from the moment he left the Supreme Court.
I always found that the best way to judge people is by what they do rather than what they say because usually, you have an easier time saying what you don’t mean than doing what you don’t want.
Aharon Barak can say what he wants now, but the fact remains that while he was head of the Supreme Court, he strongly opposed any change to it, no matter how minute. His ‘legacy’ continues to this day and the Court is now passing judgements on who can run to be elected and who can form a coalition. This cannot stand anymore. A democracy is the will of the people, not the will of a group of old geezers who never ran for office.
For anyone who claims that Barak was sincere when he said that the Supreme Court has no problem with accepting some kind of reform, I’d like to go back to 2006.
In 2006, Ehud Olmert and the Kadima party were in charge and Haim Ramon, who had at one point tried to run as head of the Labor Party joined the centrist Kadima and was named Minister of Justice.
Haim Ramon always had misgivings about the Supreme Court and the post of Attorney General (as well as the high echelons in the police and prosecutor’s office) and thought that they were the real powers in Yisrael and that they could indict whomever they wanted.
“Since 1996, all Israeli prime ministers in Israel have been under investigation. Does that make any sense?” He said in an interview.
He announced his intention, as Minister of Justice, to implement a reform of the justice system. Shortly after, a female soldier of 20 claimed he kissed her without her consent (something he denied, he said she came to him). The then head of the Supreme Court, Dorit Beinisch, had the female soldier (who in the meantime went outside of Yisrael) questioned in real time through camera as if it were a mob or international terrorist trial. Haim Ramon had to leave the post and was forbidden to hold any role that had to do with the justice system.
Coincidence? I think not.
Another central change that Yariv Levin wants to make is to separate the powers of the Attorney General, who holds the role of both State Prosecution and Judicial Counselor for the government.
Even though the Judicial Counselor for the government (in Hebrew, HaYoetz HaMichpati LaMemshala) is supposed to COUNSEL the government and defend its positions before the Supreme Court, more than once (like recently with Der’i) the person in that role went against the government and the Supreme Court more than once passed judgement that an opinion of the Counselor was to be followed as an unofficial obligation. Yet, they forget the very meaning of the name counselor, TO COUNSEL, NOT TO GIVE ORDERS.
But that should not surprise anyone since the judicial revolution of Aharon Barak, the judicial system in all its layers really thinks that they are the ones in charge and seem to have forgotten the meaning of the term democracy: The rule of the majority through its elected representatives.
You ask the people defending the judicial status quo, they’ll tell you that the Supreme Court and the Attorney General are necessary to reign in and limit the power of the government so the minority can be protected.
Again, the Supreme Court is not a humanitarian NGO. Their role is not to protect anyone or take ‘the side’ of the weak against the government. Their role is to uphold the law and make sure that the decisions of the government do not go against the basic laws which form the backbone of human dignity (like free speech, freedom of religion, of assembly, etc…). That and only that is their role. To interpret the law so that it doesn’t cross the basic red lines which society has agreed upon. Not to take the side of the minority, or the majority. Very sorry but that is NOT their job.
It’s hard for the Left to claim that Yariv Levin wants to make those changes for a specific political reason. As for these views, he has openly expressed them for decades.
So, they claim that Netanyahu named him Minister of Justice so he can reap the fruits of Levin’s reform and that the new judicial system in place will save him from the plethora of cases opened against him.
You know what? Maybe. Maybe Netanyahu has this at the back of his head.
And to this I say: SO WHAT?
As Haim Ramon has said, whoever is Prime Minister, they’re ALWAYS under investigation. It could be a way for the Judicial to always make sure that they have them in check in case they decide to do some reform.
Hence, if we wait for a Prime Minister to NOT be under investigation, I’m ready to bet my left nut that if ever such a case happens, it will be a hard leftist PM that has NO intention to make any changes in the Judicial system.
Funny how these things work.
A lot of citizens have absolutely no trust in the Justice system, a place that 20-25 years ago, would have had the unanimous support of about everybody.
They can only blame themselves, whenever the government has passed a legislation that was borderline anti-democratic but what the Leftists wanted (like the 2005 disengagement from Gaza), the Supreme Court, somehow, saw no problem with that, but for right wing policies (need I remind, the majority of the voters), there is ALWAYS some legal problem, ALWAYS.
The current Attorney General, Gali Baharav-Miara, saw no problem when the transition government of Bennett-Lapid made an agreement with Lebanon to give them parts of our natural gas in a decision taken a mere week before the election, but finds legal problems with every decision the duly elected right-wing coalition wants to do.
People are not stupid, and they are fed up that time after time, after time, after time, a group of unelected jurists can thwart the will of millions of people through their elected constituents.
That has to stop now. The Supreme Court and the Leftist politicians had 30 years to come up with an agreed upon reform but they have blocked every possibility of that.
Now they whine that the duly elected coalition rushes reforms instead of searching consensus. The Left is just stalling for time hoping that they can filibuster things until the government falls.
It won’t work because the people have their eyes opened and scare tactics of ‘end of democracy’ or ‘impending doom of a totalitarian dictatorship’ do not work anymore.
It’s time that the power comes back to the people because yes, dear Yisraeli Left, democracy does mean the rule of the majority.