In a democracy the sovereign is the people – or not?

Society in Israel is confronted not only by highly contested legislation on the judiciary but also by conflicting accounts of who is in charge.

Mr Amir Ohana, the Speaker of Knesset was reported by ToI to have weighed in on Wednesday 8 September 2023 saying this:

Israel is democratic, and in a democracy the sovereign is the people. In a democratic state, the justice system respects the sovereign – the people and its elected officials – and this respect is mutual . There is no debate and there cannot be one, over the question whether the Knesset has authorised the court to nullify Basic Laws…”

Quite a breathtaking perversion of constitutional philosophy. Simple majority rule is proclaimed to be democratic. Modern populist political thought is based on the idea that a government is based on the wishes of the citizens – the people. They are supreme in deciding what laws to have and what will or will not be permitted. Sounds simple and really great except that it is not . Nor is it at all within the scope of modern democratic practice by the free world and countries that are free , successful and prosperous.

Popular sovereignty has given rise in the twentieth century to the greatest abuses of power and dictatorships that the world has seen. From Stalinist and Maoist communism to Nazi fascism. It is the tool of authoritarianism .

This is no longer the modern approach and by modern, is meant the last 300 years and most certainly more so since the post World War Two era of international human rights. Democratic governance has been substantially modified by major constitutional rules and principles. Majoritarianism is not in itself sufficient for democracy.

The people are not sovereign in a democracy except in the sense of creating a new state under a social contract . This is the true exercise of peoples sovereignty. The making of a constitution. The founding fathers of the USA did exactly this in creating the US Constitution. It was deeply discussed before being enacted and the writings are contained in the Federalist Papers . The US Constitution is a foundational document which entrenches the limits of government power, the rights of the individual and the functioning of the State. Once created, it became the supreme law of the land and no one is above it. The people are no longer sovereign. They have ceded their sovereignty to the law. It expresses the core values of the people. The US Supreme Court can test Federal legislation for compliance with the Constitution. This right of judicial review was established in the early 1800’s in Marbury v Madison. This is a classic model for modern democracy adopted in many countries over the past 200 years and is based on the sovereignty of the law. Not the people.

The sovereignty of the law is just another way of expressing the notion of the rule of law. Long before the USA or modern written constitutions existed, the rule of law was imported into English constitutional history by the Magna Carta of 1215. The divine right of the king was abolished and the king of England submitted to obey and respect the law of the land. A turning point in the history of democratic governance. The idea took root that no one is above the law and the courts have the last say in declaring it, through interpretation and development of legal precedent and sources.

Today the rule of law is regarded as the bedrock of functional democracy. Legal and political systems may differ but they all share certain features which are built into the system. At the risk of oversimplification four universal principles apply: accountability, just law, open government, and accessible, impartial justice. Each one of these has important components. The most important for Israel being checks and balances. There must be mechanisms to prevent excesses or abuses by legislative and executive authorities by an independent court. There must be limits too, preventing overreach by the court, but this a matter of fine calibration rather than heavy handed and summary legislation.

Being of South African origin the Constitution of the Republic of South Africa of 1996 is familiar to me. It has been widely admired internationally. Chapter One contains Founding Provisions. Article 1 states:

“The Republic of South Africa is one sovereign, democratic state founded on the following values: (c) Supremacy of the constitution and the rule of law”
No mention of the people being sovereign at all. It took a long time for South Africa to attain democracy. It is not an easy path. It is easier to lose democracy than to create it. Pseudo democrats should take heed.

Israel has no constitution. The US Constitution did not authorise the courts in express words to test legislation. The court used its inherent powers to develop this remedy. The Israel Supreme Court is faced with a similar situation in testing a Basic Law or for that matter any law at all. Nor does it even have an English common law heritage since this was abolished by the Israel Foundations of Law Statute of 1980.

Despite a modern constitutional framework, Israel has built a formidable rule of law and protection of rights based in no small measure on the vigilance and independence of the courts.

Israel does have a founding document which embodies the basic values of the people- a social contract. The Declaration of Independance of 1948. It reflects the sovereign will. It lacks force of law but it has political legitimacy. It encapsulates the lasting values of the Jewish State. The Israel courts are fully justified and empowered to adopt this as the lodestone for determining the will of the people. No law in Israel is sacrosanct from scrutiny because no law enjoys special legislative protection. They were all passed in the same way. The Basic Laws included. They do however contain certain values which enhance the Declaration and to that extent are foundational law.

The Israel Supreme Court is bound to uphold the rule of law. Not the rule of laws. Mr Ohana is correct only in this respect: There is no debate whether Knesset has authorised the court to nullify a Basic Law. The court has inherent authority to decide upon its own jurisdiction and if it has authority to nullify a Basic Law. This will involve upholding the true will of the people in the foundational values of freedom, equality and justice.