There is no doubt that most of the participants in the demonstrations against the reform of the judicial system believe that they are fighting “to save democracy”. This is what judges, academics, intellectuals and senior journalists told them. Under this ideological turmoil, it is not surprising that the possibility does not occur to them that they are not fighting to save democracy, but the opposite: to save the minority rule of the leftist elite from democracy.
There are those who buy the “saving democracy” bluff and there are those who create it. This does not mean that the creators are necessarily cynics. Many of them probably consider the deception that they are orchestrating a necessary move to save the unenlightened public from itself. But I have great doubt, whether professors like Barak Medina, Yaniv Roznai or Mordechai Kermanitzer, and Supreme Court Justices like Aharon Barak, Yitzhak Zamir or Esther Hayut – all senior members of the junta who testify to their complacency – are acting in good faith. After all, they are all distinct ideologues of the anti-democratic view that seeks to fortify sovereignty beyond the reach of the citizens. They have been calling the legal oligarchy “essential democracy” for years.
Their arguments against the reform, it must be said openly, are not only misleading but also incredibly shallow. And the first is what they seek to hide: Israel is the only “democracy” in the West where 15 judges hold sovereignty (plus a veto on the appointment of their members).
This is neither a voyage nor a metaphor; This is a fact from the field of political science. The final decision-making authority in Israel passed to the court, in any matter – any matter, including the drafting of an alleged constitution. This “constitution” was created by the words of the court which gave constitutional status to the basic laws on its own initiative and without authority. There is no action by the other authorities that the court does not claim the authority to intervene in, including – as it announced in May 2020 in response to petitions against the formation of the government by Binyamin Netanyahu – the power to cancel the election results. This rule of judges has no parallel in any reformed democracy, and Prof. Shlomo Avineri rightly called our strange form of government ‘Bjzocracy’.
In a reformed democratic state, each governing body acts by virtue of an authority granted to it by law, and can vote on it. Our court has freed itself from being subject to the law – practically, because it empties laws of their content or alternatively ignores them at will, and formally because it abducted itself the power to cancel them without being authorized to do so.
An important part of the illegal revolution through which Aharon Barak’s court granted itself the authority to invalidate laws, lies in a declaration devoid of a solid legal basis, according to which the Basic Laws have the status of a constitution in order to invalidate ordinary laws based on them. But from the moment the court took upon itself the authority to limit the constitutive authority of the Knesset (in a strong ruling regarding the Basic Law: Israel, the nation state of the Indian people) and even authorized itself to abduct basic laws (in a benign ruling), it freed itself from any limitation and placed himself above all norms, including the “constitution”. And we haven’t even talked about the sparrow he called himself out of loyalty to the explicit meaning of words (through the “purposive interpretation”), and the freedom he gave himself to disqualify even what is legal but not to the taste of the judges, under the elastic title known as the “complex of reasonableness”.
Yariv Levin’s reform is far from perfect, and there are still too many loopholes left in it that will allow the elite to disrupt the will of the voters. The prosecutor’s office, which functions as the Praetorian guard of the Supreme Court, and has undergone far-reaching politicization, managed to dismantle the only body that was supposed to supervise it, and, as expected, completely failed in clarifying the corruption in its midst (Ruth David cases, the Perinian brothers, Abu Al-Kiyan, the concealment of wiretapping in the Ramon trial, Tax and other); Another half-century of radical rulings will pass before the change in the composition of the committee for the selection of judges will introduce some diversity in the activist and “creative” staff of the Supreme Court; And the postmodern theory of interpretation introduced by Barak will not soon make it possible to return legal certainty to the halls of justice.
Behind inflated legal jargon, which often hides ignorance in the theory of the regimes, slogan makers like the ‘Israeli Democracy Institute’ are asked to issue to journalists demagogic kits full of idle arguments: that “Israel does not have a constitution” (but Barak turned the basic laws into a constitution with his words) , that the reform will “abolish the separation of powers” (but it was the court that trampled it when it invaded the territories of the other authorities and created for itself an unbridled governmental power), that “in Israel the Knesset is controlled by the government” (he told Idit Silman), and that “the system is being crushed The trial is to save one person from prison” (but the reform does not concern the Netanyahu trial that started years ago and there is nothing in it that would allow him to be arrested). And of course, at the top of the parade is the far-fetched claim that in order to prevent the “tyranny of the majority”, for some reason we need the tyranny of the minority.
We are short of answers to every slogan issued to us by the representatives of the legal oligarchy and their agents of ignorance. But it is possible to point to the general conceptual framework of going astray: the judiciary is described not as a governing authority, but only as a brake, and therefore there is nothing worrisome in that there is no defined limit to its power, and there is nothing to balance or restrain it.
But the court is not just a brake, it is one of the government authorities and the uncontrolled power it has accumulated, on its own and against other authorities, endangers the sovereignty of the citizens and also cuts the important democratic link between authority and responsibility to the public. This is a situation that is not only corrupting and undemocratic, but also destructive to the entire governmental system and its functioning. All the more so when such a court imposes an agenda and values from above in contradiction to the express wishes of the majority of the public in Israel. On this conceptual deception rests the popular falsehood that claims that without an all-powerful court, nothing will stop the trampling of individual and minority rights. In reality, the opposite is of course true. The unbridled power in the hands of the court and its praetorian guard in the prosecutor’s office has given rise to the dismal situation of Israel today in the field of human rights: in the criminal law where these rights are most necessary to protect against the arbitrariness of the government, the Israeli citizen has no real protection.
The presumption of innocence has become an empty shell in courts where skyrocketing conviction rates are recorded. The arrest policy of the police, which the prosecutor’s office backs up and the courts approve, has crossed every sane boundary. It was the Knesset that sought to preserve the human rights of the accused, with enlightened and humane legislation; The court trampled the law, and the rights that the law grants. The claim that the court “protects minorities from the tyranny of the majority” also does not stand the test of reality, because it depends on which minority you belong to. Ask the settlers about their right to protest in secession, about arrests until the end of the proceedings of 14-year-old girls, about prolonged administrative arrests or alternatively about the closing of Channel 7. This is evident in the enforcement of the principle of equality (which does not appear in the Basic Laws) unequally on ultra-Orthodox (whose exemption from conscription is not Nice in the eyes of the High Court) and Arabs (whose exemption from conscription is actually nice in his eyes).
The left can continue to deceive itself that “the Likudniks did not vote for the reform”, but on the right side of the map it has been clear to all of us for some time that no right-wing policy will pass as long as the legal oligarchy rules over the heads of the elected officials, and draws for them the limits of the policy that the left dictates. Binyamin Netanyahu realized that although the reform would probably turn the system against him, the camp would not forgive him if he tried to stem the tide of anger over the continuous shredding of election ballots by jurists.
But the most blatant of the lies of the propaganda machine to save the minority rule lies in the claim that in the absence of an all-powerful court, there will be only one, all-powerful authority in Israel, and that is the government, which controls, so we are told, the Knesset. Prof. Yitzhak Zamir invented an innovation in the description of the Israeli regime as a “coalition democracy”, and added that the government is controlled by its head, so we basically have a single government in Israel.
It is not clear to me where the owners of this strange theory lived in the last decades. Probably not in real Israel, because in real Israel, in front of the government and in front of the Knesset stands the biggest brake. It’s called elections. Not even that: if the owners of the innovative theory had looked at their own message pages from a month ago, they might have remembered that they claimed under every fresh tree that Netanyahu is weak and blackmailed, captive in the hands of a coalition, each of whose members is ripping off a piece of his rule. And maybe they didn’t notice that in our system the entire Knesset is full of obstacles in front of the government, since the coalition factions can – and they often do – overthrow governments, and sometimes even a single member of the Knesset can do it.
I will therefore conclude by calling on the Minister of Justice Yariv Levin: do not be impressed by the cry of the Cossacks being robbed. This is the swan song of an elite running amok in the face of the dying throbbing of its undemocratic rule. Act forcefully and return democratic sovereignty to its rightful owners: the citizens of Israel.
***
To listen to all episodes of the podcast ‘Gatekeeper’ with Dr. Gadi Taub – click here.
To watch all the episodes on the Shomer Shef YouTube channel
Follow ‘Mida’ also on social networks:
(viewed 1 times, 428 visits today)