The difference between democracy and majority rule

The recent Jewish Nation State Law seeks to undo Aharon Barak’s ‘constitutional’ revolution’ and make Israel a country where there are no checks and balances on the power of the Knesset. This move endangers the rights of both minority communities in Israel and Palestinians.

In 1995, just five days after the assassination of Yitzhak Rabin the Supreme Court of Israel made it’s most important judicial declaration. It ruled then that it has the power to invalidate “regular” Knesset legislation that conflicts with the basic laws of Israel.

This ruling followed the passage of the 1992 Basic Law: Human Dignity and  Freedom and the 1994 Basic Law: Freedom of Occupation, and it created a constitutional revolution. Prior to the enactment of these basic laws there was little statutory protection of human rights in Israel.

Aharon Barak, who president of the Supreme Court in 1995 famously said at the time, “Everything is justiciable.”

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In the 23 years that have since passed, the Israeli public has not internalized the idea that constitutional judicial review of Knesset laws, meaning the court’s power to invalidate unconstitutional legislation, is a feature of advanced democracies.

Unlike most other democracies, Israel does not have a bicameral legislature or senate to review bills,nor does it have a constitution or a bill of rights. This means the the sole check on the ruling coalition in the Knesset is the High Court of Justice.

Since 1995 the court has overturned 18 laws or parts of them, that violate human rights or the basic dignity of Israelis and Palestinians.

These include a law allowing soldiers to be held for 96 hours without being brought before a judge; a provision in the so-called boycott law allowing the claim and payment of compensation without having to prove damage; and the law denying welfare payments to car owners. In addition, the court intervened on numerous occasions in rulings that did not involve laws. For example, it barred the state from retaining the bodies of terrorists as bargaining chips, ordering that a law must first be passed explicitly giving the state that right.

In the 1999 case of Committee against Torture v. Government of Israel, the High Court prohibited the use of various means of torture that were systematically employed by the General Security Service (GSS) until that time.The ruling was denounced by many critics – including some members of the Israeli cabinet – who said it ignored the realities of waging war on terrorism. But leaving the court, the chief justice, Aharon Barak, said: “I think this is one of the most honourable decisions taken by the court regarding the security services in the history of the state of Israel.”

In 2001, the Knesset passed law stating that “No religious ceremony shall be held in the women’s section near the Western Wall that includes taking out a Torah scroll and reading from it, blowing the shofar, or wearing tallit and tefillin. Violators shall be imprisoned for seven years.” After an intense campaign led by Women of the Wall, the court ruled in 2004 that despite the state’s claims to the contrary, WOW maintained a legal right to pray at the Robinson’s Arch part of the Western Wall.  In January 2017, the court ruled that if the government of Israel could not find “good cause” to prohibit women reading from the Torah in prayer services at the Kotel within 30 days, women could do so; they also ruled that the Israeli government could no longer argue that the Robinson’s Arch area of the plaza is access to the Kotel.

Of all the laws the court has overturned, the most controversy has arisen over the issue of asylum seeker rights. In October 2014, after the High Court overturned a new law allowing asylum seekers to be held indefinitely at the Holot detention center, Ayelet Shaked – today the justice minister, then an MK – submitted an amendment to the Basic Law on Human Dignity and Freedom called the ‘override bill’, that would have permitted the Knesset to reenact laws overturned by the High Court on the grounds that they violate the Basic Law, with a vote of 61 MKs. The Supreme Court president at the time, Justice Asher Grunis – who voted against his colleagues’ decision on Holot – attacked Shaked’s bill. “A directive allowing the Knesset to decide that a certain law will be valid despite the court’s ruling is liable to lead to a situation in which the court cannot carry out its appointed function as the last obstacle to a tyranny of the majority.”

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This issue of asylum seekers was also stated by Moshe Kahlon as his reason for supporting this and other bills to limit the power of the high court. “Any solution that relates to the problem of the [African] infiltrators, we will support. All the other whims are simply not on the agenda,” said the Kulanu leader.

For those who say the court is simply a tool of the left, consider these rulings which very much pleased the right wing of Israeli politics. In 2006 Israel’s Supreme Court rejected a petition to declare targeted killings of wanted Palestinians illegal. The court recognized that some killings violated international law, but the legality of individual operations must be assessed on a “case by case basis”.

In 2009, Regavim — a pro-settler NGO — along with the nearby Israeli settlement of Kfar Adumim successfully petitioned Israel’s Supreme Court to enforce the demolition order from the Ministry of Defense that will remove the Bedouin village of Khan Al-Ahmar from their homes in Area C of the West Bank.  

In 2015, the Court upheld the Anti-Boycott Law that permits individuals to sue anyone who calls for a boycott of Israel, or areas under its control. In 2016, the High Court rejected the Umm-al-Hiran Beduin petition to block the demolition of their town, leading them to make a desperate plea to have their case heard by a broader High Court panel, a request that was rejected by Supreme Court President Miriam Naor.

And in 2017, the court refused to demolish the homes of Mohammad Abu Khdeir’s murderers, as Israel does to the family homes of Palestinian murders. According to Justice Neal Hendel, the policy was not necessary to deter Jewish terrorists like Palestinian ones because the former are “a minority of a minority of a minority.”

Despite these rulings, almost all supporters of the recently passed Jewish Nation State law site the Constitutional Revolution led by then-Supreme Court President Aharon Barak, which recognized earlier Basic Laws as having constitutional status as their motivation for the legislating the Jewish nation State Basic Law.

Why the Israeli right wants the Jewish Nation State Bill

Gilad Erdan, a leading figure in the Likud party led by Netanyahu, told Army Radio in April that there is a “serious problem,” and that “the balance between [the judiciary and legislative] authorities has been upset,” with the right of the public to elect its leaders to govern having been undermined by a series of High Court rulings over the past year. “As a nationalist camp that was chosen many times to lead the country it is our duty to correct and… to make a change in this area, in the balance between ruling authorities.

Justice Minister Ayelet Shaked, from the Jewish Home party, justified her support for this bill by stating that “In the last 20 years there was a judicial revolution in Israel, led by former Supreme Court President Aharon Barak, in which the Court interfered in many subjects that in my opinion are not relevant for the courts.”  

Back in 1992, when the Basic Law: Human Dignity and Freedom initiated by Shuni MK Amnon Rubinstein passed by a vote of 32-21, the idea that this law would one day be used by the court to overturn subsequent legislation passed by much larger majorities would have astounded most Israelis. Few MKs in 1992 considered this bill terribly consequential.

After the 2018 Basic Law passed, Naftali Bennett tweeted, “To my friends on the left, the Nation-State law became crucial because of the High Court, in a series of rulings, gradually voided the Jewish facet of meaning,”adding that the court had strengthened “democracy” but weakened the “Jewish” character of Israel.

Demonstrators attend a rally to protest against the ‘Jewish Nation-State Bill’ in the Israeli coastal city of Tel Aviv on July 14, 2018. – The Jewish Nation-State Bill is a draft Basic Law with constitutional weight that declares that Israel is the nation-state of the Jewish people. (Photo credit JACK GUEZ/AFP/Getty Images)

Why supporters of liberal democracy are against attempts to weaken the powers of Israel’s Courts

Earlier this year American legal scholar Alan Dershowitz pleaded with Netanyahu to not advance the override bill that would limit the power of the supreme court.  “The Israeli judiciary is the jewel of Israeli democracy,” Dershowitz said. “When I make the case for Israel around the world, I always focus on the strength of the judiciary. It would be a terrible tragedy if its independence would be in any way diminished by the actions of the Knesset. I hope the prime minister will not allow politics to harm the rule of law.”

Yehuda Weinstein, who was Israel’s Attorney general in 2015 shared this view saying,  “Democracy is not just majority rule. A democracy in which there are no limits on the actions of elected officials is not a democracy. Democracy that functions on the power of the majority and tramples minority rights is not a democracy. Democracy that does not preserve equality is not a democracy. Democracy that does not preserve human rights is not a democracy.”

Debbie Gild-Hayo, who is the Policy Advocacy Director for the Association for Civil Rights in Israel also commented on the proposed override bill which thankfully never passed the Knesset. “Contrary to the claims by many members of today’s ruling Knesset coalition, the deepest essence of democracy is the protection of minority rights. There is no democracy without checks and balances. There is no democracy without protection against the tyranny of the majority.”

Most Israelis seem to agree with her. A recent Israel Democracy Institute survey found that 65 percent of the public believe that the proposed override legislation would give government ‘unlimited power,’ which they opposed. Just 28% said that passing the override bill would be “in the best interest of the Israeli state,” according to the poll.

The opinion poll was made public following the proposal of a bill in May 2018 introduced by MK Bezalel Smotrich (Jewish Home Party) giving a majority of 61 MKs the power to ratify a law struck down by the Supreme Court. The bill is an amendment to the Basic Law: Human Dignity and Liberty.  

Whilst I can accept the need to prevent unelected judges from doing as they please with the laws of the Knesset, it’s likely that having a threshold of 75, rather than 61MKs, would have made this law far more palatable to most Israelis.

The problem with Netanyahu’s justification of the bill

In the past week, Netanyahu has furiously defended the Jewish Nation State Bill following outrage by many Israelis, especially the Druze community. “We have determined the personal equal rights of Israeli citizens in a series of laws including Basic Law: Human Dignity and Liberty… However, we have never determined the national rights of the Jewish People in its land in a basic law – until now, when we passed the Nation-State Law.” said Netanyahu.

Yedidia Stern, who is the deputy president of the Israeli Democracy Institute, an Orthodox Jew, and a law professor at Bar-Ilan University, disagrees with this assessment. In a recent op-ed in ynet, he stated that “the bill’s most dramatic damage is the violation of the balance between the Zionist enterprise’s particular aspect and its universal one.”

Stern explained that “The bill extensively reviews one side of the equation—the Jewish identity of the state — without mentioning its democratic element. Those who support the bill argue that that democratic element is already addressed in other basic laws. But that’s misdirection, since Israel does not have a complete Human Rights Charter, and even the most basic right of all — the right for equality — is not explicitly statutory.

Therefore a reasonable interpretation of the Jewish Nation State bill might put the Jewish majority’s national preferences above basic human rights, thus enabling harming the Arab minority through nationalistic legislation as well as by the actions of the executive authority.”

Conclusion

The 1992 Basic Law opened with the words, “The purpose of this law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”

Since that time, this law has prevented indefinite imprisonment of asylum seekers in Israeli detention centres, stopped certain torture techniques previously employed by the Shin Bet, limited the scope of targeted assassinations  and given women certain rights to pray at the Kotel in the manner they choose.

Now that the the 2018 Jewish Nation State Bill is Law, the future of cases on these matters, and many other human rights issues may have different outcomes. These new outcomes may be far more celebrated by the majority of Israeli MKs, which is how many of them believe democracy should work. My fear is that in granting the wishes of the majority to have their way in this country, all of us could be the poorer for it as the dream of “complete equality” articulated in Israel’s Declaration of Independence moves one step further from being realised.