Furthermore, They Are of the Opinion That Democracy Should Be Destroyed

Much has been said as of late about the latest legislative effort to curtail the Israeli Supreme Court, led by the “Jewish Home”. Some, particularly on the Right, support this legislation, though in different versions. There are those, such as Supreme Court Chief Justice Esther Hayut, who suggest that such an override by the Knesset of a Supreme Court’s decision should only be allowed via a special, 70 MK’s majority vote; Others maintain that such legislation should only be made as part of a wider reform in the relationship between the Judiciary and the legislator, a position even Aharon Barak expressed some support to; Others still, especially Ministers Bennett and Shaked, hold that this issue cannot wait, and that a regular, 61 MK’s majority, should suffice to allow the Knesset to follow through with legislation that the court could have otherwise blocked. This, they say, would be proof of the “people’s” superiority over the non-elected-experts of the court, and mark a milestone in Israel’s journey toward a more complete democracy.

On the other side of the political spectrum – ever so comfortably divided by Moshe Cahlon’s “Kulanu” party, the self-appointed safe keeper of the court’s independence within the current government – many stand in stark opposition to these recent events. Again, very much mirroring the Right wing, this flank of Israeli politics presents a plethora of opinions. The majority, represented by Labor Party Chair Avi Gabbay and MK Tzipi Livni, oppose any change made to the Supreme Court independence, citing fear for civil and political rights or plain human rights. Other, more moderate scholars such as Prof. Ruth Gabizon suggest that a change is going to come, but that now is not the time. Finally, some, yours truly included, hold that the Supreme Court is one of the last standing strongholds of liberal democracy to be toppled by a government that subscribes to a dangerously narrow definition of democracy.

For, you see, in all this talk of the Supreme Court and its unique status, a lot of statistics, fake and real news, database points and just random numbers, free of any context, are tossed into the air in hopes to create such chaos that will allow a passing of what is in fact a crucial bit of legislation. Take for instance the government’s claim that this court has been too independent and has struck down more laws than other courts have in other countries. In actual fact, the court has struck a mere 18 laws down. Consider the suggestion that the court is essentially a leftist stronghold where justices appoint only like-minded friends to the bench. It may come across as somewhat true when we think of several outstanding justices such as Barak, Beinish and the like – but then again, 14 out of 16 (including incoming justice Prof. Alex Stein) current justices were appointed by a Netanyahu-led, right-wing government, by right-wing dominated committees and right-wing ministers, including Prof. Daniel Friedman, Ya’acov Ne’eman and of course, Ayelet Shaked. And the of course, there are those who, as I’ve mentioned, say that while a 61-MK vote is too narrow, a 70-MK should suffice to override the Court. Advocates of this supposedly higher bar ignore one minor detail: out of 34 governments that ruled in Israel since 1948, no less than 16 (47%) were of 70+ MK’s. In other words, a 70 MK vote means one in every two governments could be able to override the court. That’s not so far off from the current proposal, per which every functional government could do so, is it? The most famous manipulation her, of course, is that of the Court’s verdict on the Disengagement: the court was supposed to defend the minority here, say right-wing journalists like Amit Segal, suggesting the only way to so would have been for the court to strike down a strategic decision with bi-partisan support was to rule in favor of 8,000 people living in ex-territorial lands, inside the Gaza strip. These journalists also ignore the fact that it was the court that ruled for higher compensation to the evictees. Oh, how short the memory can be sometimes.

The main concern we should discuss then, is not that of different versions of the same notion, nor that of pure numbers’ games, nor even that of protection of minorities. Don’t get me wrong: these are all important topics, and in many ways significant to this struggle. But even if we, the people of the Jewish state, care not for human rights, hold civil rights of minorities as unimportant and only care for the notion of majority rule, we must still oppose any limitations to be placed on the Supreme Court.

I know this statement seems peculiar: if the court is what’s getting in the way of the government from pursuing its agenda (it’s not, by the way. Have you forgotten about the left, the fake-news media and the lizard people?), why not simply silence it? Well, the answer is simple: a crippling of the court will be but a final stage in the crippling of the very structure of Israeli democracy. With the government already being by far superior to the Knesset, where it holds a majority owing to the very way our democracy is built, any legislation set to subordinate the Court to the Knesset is in fact subordinating it to the government. Thus, instead of a separation of authorities, we get a hierarchical power structure, where the government dominates the Knesset, which in turn overpowers the court and subdues it.

What this does, in effect, is minimize all forms of dissent or resistance to governmental actions for us, the people, to one: voting, once in four years or so.  It turns our vibrant, robust democracy, where free speech is key, to a silently obedient one, where we must all accept each and every move by the government, regardless of whether or not we agree. Sure, we can talk about it in the papers and the media (for now, at least) but we have no way to express our thoughts, our hopes and our fears, but voting every now and then. A democracy once every 4 years, that is semi-tyrannical mixture of authoritarian notions of “majority rule” that comes with no bearings, no limitations and no one to stop it, is not a liberal democracy. It is, perhaps, an illiberal one, shaped after Erdogan’s Turkey and Orban’s Hungary. Quite the company, I should say.

This is the direction in which the current government is headed: that of an elected coalition of minority parties (the 8-seat religious Right, the 13-seat ultra-Orthodox Ashkenazi and Sephardi Right etc.), which presents itself as an overwhelming, undisputed, undeniable, eternal majority that should never be dissented upon, disagreed with or questioned by any one – be it a citizen, the police, the IDF, the clerkship, the media, the academia, the courts or the people. What Bennet, Shaked and co. are calling “an expression of the superiority of the people”, is nothing but a smoke-screen, covering up what is, in effect, a takeover of a free country by forces hostile to liberty and majority rule, who see themselves as the sole legitimate actors on the political stage and plan on making sure everyone else concurs.

About the Author
Ido is a Tel-Aviv educated lawyer and an MA graduate in Human Rights Studies from Columbia University. He currently works at an American-Israeli NGO located in New York. He writes the “Manhattan Project” blog for “Ha’aretz”. Prior to moving to New York, Ido worked as a lawyer at Herzog, Fox, Ne’eman and co. He has previously served as an adviser to Israel’s ambassador to the OECD, UNESCO and CoE. Ido Served as an intelligence officer in the Golani Brigade between 2005-2009. He still serves in reserves.
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