Stop this march of folly

A dark shadow has fallen over the constitutional regime in Israel. Leaks from the coalition talks point to the negotiators’ desire to revolutionize the present system of checks and balances between the law and politics. The future coalition aspires to replace the current “judicialization of Israeli life” with the “politicization of Israel law.”

Among other items on this agenda is a change in the system of choosing judges, so that politicians will constitute a majority of the appointments committee; shifting the authority for the “last word” on the constitutionality of legislation– to the Knesset; a drastic reduction in judicial review of actions by the executive branch; elimination of ministry legal advisors’ responsibility to the public and making them beholden to their ministers; and more.

A majority of those affiliated with the Religious Zionist sector are strongly in favor of the proposed changes. It is incorrect to accuse them that in doing so, they are promoting their personal interest. Unlike the charges hurled at politicians seeking to evade prosecution, cutting the High Court down to size was on the sector’s to-do list long before the police investigations of the Prime Minister began. For Religious Zionism, this is not momentary opportunism, but rather – the realization of a long-cherished dream.

The highly critical attitude of the National Religious community towards the Supreme Court has deep roots, nourished by the court’s rulings on a series of classic Israeli dilemmas relating both to religion and to the nation. One of the most prominent cases of the sector’s disenchantment with the justices, in fact the paradigmatic case, was the Gaza Disengagement plan. Over the past generation, this touched the most sensitive nerve of the National Religious public.

In the words of the report of the State Commission of Inquiry on the Disengagement, of which I had the honor to be a member, the settlers in Gush Katif, “pioneers and doers, were forced into exile from their homes, their communities, the landscape in which they lived. The sovereign authority ordered the settlers to pull up their roots, abandon a blooming area, and be displaced from their land. In contradiction to their beliefs and in sharp contrast with their plans for the future, the settlers, with a seething heart and a devastated soul, their throats choked with tears of sadness, humiliation, and pain, evacuated vibrant communities, full of life.” Even then I thought, and said publicly, that this was one of the most painful blows to human rights that the State of Israel had ever delivered to its citizens.

But the Supreme Court did not come to the settlers’ defense. On the contrary, it approved the Disengagement Law almost unanimously (ten justices, against the lone dissent of the late Justice Edmond Levy) and even took a hard line approach against the protest of the Disengagement, when it exceeded a certain limit. (In the interest of full disclosure: the Israel Democracy Institute, where I am a senior fellow, did not take a strong enough position regarding the fallacies of the process of decision-making in Ariel Sharon’s government). This left unsettled business between the National Religious sector and the Supreme Court, fueled time and again by additional court rulings over the years.

It seems to me, however, that the proposed remedy—an extreme erosion of the court’s authority—is the antithesis of the lesson we should learn from the Disengagement. Perhaps in the past, when the justices came from more or less the same socio-cultural background, one might say that the Court was insufficiently sensitive to the religious public’s most precious values. Today, however, with six new justices having been installed by the high priestess of Israeli conservatism, Ayelet Shaked, we can assume that the Court’s considerations — would be different. Shaked worked overtime to achieve this goal, and was successful.

But instead of reinforcing this trend and safeguarding the Court’s independence, some of whose liberal attitudes have been replaced by conservative perspectives, it is precisely now that the conservatives want to trim its locks and transfer power to the politicians. This reflects extreme shortsightedness on the part of a group that will always be a minority in Israeli society. The current intoxication with the new religious hegemony is understandable, and even justifiable. But will it last? Tomorrow, or the day after, the organized political power of the National Religious will shrink to its natural and more modest dimensions. If and when the sector finds itself in a conflict of interest with the majority of Israelis, it will be defeated in the Knesset and the government. In the absence of a strong court, the religious minority will be left exposed to majority decrees and without protection by any other branch of government.

We must not forget that the Disengagement was passed by the Knesset, bulldozed by Sharon – and not by the Supreme Court. Should some future Knesset decide to evacuate settlements, a conservative court – even if unable to stop the move, could at least extend a helping hand to those affected. The current plan to remove the checks and limits on the executive and legislature would eliminate this protection.

A similar analysis applies to the ultra-Orthodox, who currently exercise veto power on many issues and see the court as an obstacle to the realization of their political power. But they too will always be a minority in Israeli society. One day they are liable to find themselves trampled under the will of a Knesset majority, and lacking any protection of their human and minority rights.

Israel is not just a “Jewish and democratic state,” but also the “state of all its minorities”: there is no clear majority group that determines which way the country is going. President Rivlin was right when he described the new social order as a mosaic of minority groups, with no clear hegemony. Because we all belong to some minority or other, the ultimate interest of each and every Israeli is not to allow the majority to exercise power, unfettered with any checks and balances. The pain and anger of the Gush Katif settlers, a minority crushed by the majority, are liable to return under various circumstances, and even more fiercely, if the power of judicial review of Knesset legislation and government actions, now wielded by a Supreme Court that is becoming more and more conservative, is eroded or eliminated.

Today, the attacks on the judiciary by the Religious Zionists and the Ultra-Orthodox can no longer be seen as rational. They reflect their anger and their desire to revenge the past, but blind them to the real dangers, interests, and needs that may arise in the future. Anger and revenge are not solid foundations for good decision-making. Can we stop this march of folly?

About the Author
Yedidia Stern is vice president for research at the Israel Democracy Institute and a professor of law at Bar-Ilan University.
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