On democracy and the war against the High Court

“The Court has officially seized control of the Knesset,” announced Minister Yariv Levin in March 2020, when the High Court of Justice instructed the Speaker of the Knesset to convene the plenum in order to choose a new speaker. “The judicial system is trying to stage a coup in the State of Israel, nothing less,” declared Minister Bezalel Smotrich. Speakers on the political right repeatedly demand that the court be stripped of its power, and democracy be given back to the people.

Countering these allegations requires us to revisit the foundations of democracy.

We all know that elections in Israel should take place at least once every four years, and usually more frequently. But elections are only an attempt, not always successful, to translate the voters’ wishes into a well-functioning and representative government.

The pieces of paper we drop into the ballot box do not fully express our views on almost any single topic, and certainly not on all. Even if elections could reflect the people’s will with perfect accuracy, there is no guarantee that the elected Knesset members will act for the public good, and adhere to the platform to which they committed and on which they ran for office.

Because elections are not the perfect tool for expressing the popular will, and because it is difficult to ensure that elected representatives will act as they promised, no democracy anywhere in the world makes do with elections to a single institution as the only means for implementing democracy. Additional mechanisms are put into place to bolster citizens’ participation in the public arena and to exercise oversight of the elected institutions.

The first such mechanism is the division of power among several institutions. For example, come November, US citizens will be voting for a president, the House of Representatives, a third of the Senate, and various state and local officials.

The second mechanism consists of institutions that keep an eye on elected representatives to ensure that they do not exploit their power to deprive the citizenry of specific freedoms or to impose a tyranny of the majority. The judicial system is one of these institutions, and perhaps the most important among them.

My about-to-be published book, “The High Court Wars; The Constitutional Revolution and the Counter-Revolution,” describes the development of these mechanisms in Israel in recent decades. The public’s distrust of politicians in the 1980s spurred the Knesset to expand the power of the executive branch. This resulted in the government gaining total control of the political agenda, while the Knesset lost its ability to curb aggressive government policies. In other words, the primary mechanism of democracy—the separation of powers among the branches of government—was severely undermined.

The politicians worked hard to balance the added power granted to the executive branch by setting limits to its authority. This task was entrusted to none other than the Supreme Court. That is, the second mechanism for limiting the power of the executive branch was stepped up, and the Supreme Court became the only effective check on the government.

In other words, the “constitutional revolution” was not a left-wing putsch intended to thwart right-wing governments. It was the result of a rebalancing of powers, to create a new equilibrium that was acceptable to many — on both the Left and the Right.

However, in recent years, many right-wing parties have been trying to shift this balance, for a number of reasons.

First, the right’s many years in power have eroded politicians’ understanding of the importance of institutions that set limits to their power. Some of them have never sat on the benches of the opposition, and thus have never had any need for institutions that can restrict the government’s powers.

Another and perhaps more important reason, is the rise of populism. Populism is an ideology that focuses democracy on a strong elected leader. At every opportunity, populists will argue that anyone who seeks to restrict the leader’s power is a representative of the elite, who are eager to undermine the elected leader’s power — and thus — that of the people who chose him.

Almost by definition, populists reject the limits that the court sets on the government. The fact that the courts espouse complex positions that restrict the power of the executive branch, and that it is relatively easy to characterize the judges as members of snooty elite, set off their darkest instincts. Attacks on the courts by populist leaders are not unique to Israel. Almost every populist at the helm of a national government — Orbán in Hungary, Kaczyński in Poland, and of course — Donald Trump in the US — wants to cut back the court’s powers, especially when it tries to limit the leader’s authority.

A third reason for the attacks on the court is — of course — the unique situation of an incumbent prime minister under indictment for serious crimes. What argument could be more compelling than that the judicial system is deliberately seeking to oust him from office?

The convergence of these trends has brought the attacks on the judicial system to a new peak, with an indiscriminate assault on all the senior officials of law-enforcement agencies.

As long as the Supreme Court retains its authority, the balance of power that is absolutely essential for maintaining democracy and for the freedom of all Israeli citizens, will be guaranteed. Any significant cutback in its powers will drastically heighten the risk to the future of us all.

Prof. Amichai Cohen is a senior fellow at the Israel Democracy Institute and a member of the law faculty of Ono Academic College. His book, “The High Court Wars: The Constitutional Revolution and the Counter-Revolution,” was published by Dvir Press.

About the Author
Prof. Amichai Cohen is a research fellow at the Israel Democracy Institute, where he works on the National Security and Democracy project. He is also the Dean of the Faculty of Law at Ono Academic College, where he is a professor of International Law.
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