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"A new generation of law students is being educated, and a new generation of judges is coming up, that are being taught the view that I can call nothing other than 'post-democracy,' according to which it isn't the legislator who is at the top of the pyramid of norms – like in any other democracy – but rather the judge." These words were spoken by President Reuven Rivlin in May 2003, when he was serving as Knesset speaker. Then-Chief Justice Aharon Barak was present in the audience when Rivlin stated, "the 'judicial revolution' declared by the chief justice of the Supreme Court a few years ago was in effect … a coup, which today ultimately endangers the most sacrosanct foundations of Israeli democracy."
Why? Because the balance between the legislative and judicial branches of government has been upset. Instead of the judicial branch receiving its power from the lawmakers and the laws they pass, it places itself above them. Rivlin went on and said, "Why should we have laws at all? Why all the bother of passing laws at all? Let's appoint judges who will sit at the gates of the city and rule on what is just – each one according to his own understanding, according to the basic principles he accepts, according to his education, his mood, his beliefs, and his personality." And if so, how is the opinion of any judge better than that of any other citizen?
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The Supreme Court ruling this week reminded us that even if on April 9 we hold a democratic electoral process, our elected officials will have to grapple with an oppositional court that believes that we are not mature enough to govern. Never mind govern – that we aren't capable of thinking for ourselves what ideas and statements we should hear, and what may and may not be said in public discourse. Freedom of expression took a tumble this week when Otzma Yehudit candidate Dr. Michael Ben-Ari was disqualified from running for the Knesset because of what the court defined as "racism."
I don't intend to defend what was said but I will definitely defend the ability to say it, even if it's unpleasant to our ears – just as I defended the right of MK Hanin Zoabi (Balad) to attack us from her soapbox. We don't need a nursery school teacher to protect our gentle souls. We'll listen and we'll decide for ourselves. A society in which difficult things cannot be said will move the boundary of what is forbidden time after time until even normative remarks are prohibited.
Who decides what constitutes racism? In 2008, when Barack Obama was running for president, the Republican Party put out clips of preacher Jeremiah Wright, pastor of the church to which Obama belonged. Wright said harsh things about the U.S. Since I am wary of truncated quotes, I went and listened to the whole sermon. It was more than an hour long. The quote sounded completely different, although it was still harsh – it had an inherent context. And from there to our current reality: Is a person who stands at the graves of the Fogel family or another open grave of a victim of terrorism and, out of rage, screams harsh things about the murderers and the society that produced them, necessarily a racist?
Psalm 137 ends with the terrifying call: "Daughter Babylon, doomed to destruction. … Happy is the one who seizes your infants and dashes them against the rocks." I guess that the Supreme Court justices would characterize that statement as not only racist, but also an explicit call to violence, and maybe even order the poet to be jailed. But this is the song of our forefathers and foremothers in exile – "By the rivers of Babylon we sat and wept when we remembered Zion" – which was in the bones of every exiled generation of Jews. They saw the destruction and experienced the cruelty of the Babylonians, who took no mercy on infants or the elderly and razed Jerusalem "to its foundations."
The captors commanded the exiled, probably Levites from the chorus and the choir of the Temple: "Sing us one of the songs of Zion!" But the musicians hung their harps on the poplars and refused: "How can we sing the songs of the Lord while in a foreign land?" They swore never to forget Jerusalem and to consider it their highest joy, then turned to getting even with their enemies. First, neighboring Edom, which helped the Babylonians and encouraged them to destroy Jerusalem, and then Babylon itself and the terrifying cry to seize its infants.
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Racism sees members of a certain race as inferior for no reason other than that they belong to that specific race. But it's difficult to label a society that is fighting a war against another group "racist." The hatred is aimed at those who want to attack and destroy it.
The struggle of the Arabs of the region goes far beyond a simple war. It denies Israel legitimacy as a Jewish, democratic state, and thereby falls under the Article 7a, under which Ben-Ari was disqualified. That article of the Basic Law: The Knesset disqualifies any party list or person whose goals or statements include: "1) Rejecting the existence of the State of Israel as a Jewish, democratic state; 2) incitement to racism; 3) support for armed struggle by an enemy state or terrorist organization against the State of Israel."
The main claim from leaders of the Arab parties, as well as the Palestinian leadership, is that Israel is by definition a racist state because it gives preference to the Jewish people over other nations. They don't recognize the Jewish people's right to national self-determination in their own land, and they see us as just a religion, not a people, and therefore not deserving of a country. Us, of all the nations on the face of this earth! Is that not racism? These declarations are also expressed by action to slander Israel internationally, encourage boycotts against us, and bring IDF officers and Israeli politicians to trial in the International Criminal Court in The Hague on charges of so-called "war crimes" (in other words, for defending Jews). And we still haven't mentioned the explicit statements in support of terrorists or armed struggle against Israel.
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Having said that, I'll repeat my view that citizens of a country have the right to a worldview that rejects the definition of that country. This is what freedom of opinion in a democracy means. Demos (the people) includes many different, opposing opinions. Anyone who is kept from expressing himself might eventually commit physical violence. Therefore, I don't ask the Supreme Court to protect me from opinions that reject my national existence or to burn out racist statements about us. As long as they do not include explicit calls to violence, we can manage on our own.
Our sages taught that justice must be seen. Two of the nine Supreme Court justices were consistent: One rejected the candidates from both the Right and the Left on the basis of the strict letter of the law. The other allowed both the right-wing and left-wing candidates in an activist interpretation that effectively canceled out Article 7a. But the other seven justices rejected only the candidate from the Right and approved the candidates from the Left. The Supreme Court draws its power not only from the law but also from the public's faith that the justices serve the law. Our sages issued a dire warning about the danger of appearances – and judges must be much more careful when an election is at stake and the risk of politicizing the law hovers over us.
In 1984, when discussing the disqualification of Rabbi Meir Kahane, Aharon Barak wondered whether it might not be correct to maintain that "the weakness of racism and incitement [lies in] their inherent lie, which is exposed to everyone in that very same free competition of opinions and ideas that makes democracy unique?" This week, it seems that the Supreme Court justices forgot that.
