Just like that, while waging a war for Israel, we fell asleep at the wheel. One morning, we woke up to a country in which the legitimate government was democratically elected but the entire game was rigged before a single vote was counted.
That is because the governing power is divided between us and a small group of people who have barricaded themselves in the Supreme Court and have been imposing their will on us by way of an unwritten constitution whose values correspond with some imaginary Israel. This imaginary state was dreamed up by a tiny, self-appointed group that was never elected to power by any part of the public.
They appointed themselves not only to be a check in a system of checks and balances but rather a supreme authority with the ability to strip the legislative branch of its power. They use the legislature's laws as nothing more than a foundation on which they impose their own, very specific views.
The interpretation of texts has been an integral part of the Jewish people almost since our inception. Open a page from an annotated Talmud or Bible and you'll see, the text is situated in the center, and around it, like orbiting satellites, are the commentaries, engaged in a timeless debate with the written words of the text.
If a stranger were to somehow find himself in a Jewish seminary, even if he didn't understand the subject being taught, he would find that all the verbs in the lesson are in the present tense: Rabbi Akiva asks, Rashi comments, Maimonides argues, the sage in the Book of Proverbs says, etc. The verbs make it clear to everyone that for Jews, the ancient texts were never forgotten on a dusty museum shelf. They are surrounded by life and kept alive by debate. The text speaks to people, again and again, explaining, enlightening, demanding and arguing. It settles disputes, it defines and exposes new, previously unseen layers. Generation after generation.
When it comes to commentary, the Jewish people have the best education. We have learned how to spin entire planets on our curved thumbs, and we dared to conclude more than 2,000 years ago that "it is not in heaven" (Deuteronomy 30:12), meaning that the Torah may have been given to us by God, but it was not beyond man's grasp. It is in our power (in all humility) to interpret the sacred texts, and these interpretations led us to make laws and provisions and governments and legal systems. So when we encounter a law legislated by the modern Knesset, or a ministry appointment or the public's democratic choice at the polls, we view these as texts, and like every other text, we feel that if we debate them enough we can turn them into something new, more to our liking.
A man cannot hide from his cultural designation. When he approaches a text, he pours his entire world into it. While this may be great for commentary and creativity, it is problematic in a society with an overabundance of opinions, where the Supreme Court justices' cultural world represents only one of many possible interpretations of the reality, the language and the law. The justices approach the law with a rigid set of values, which they were taught in the social and ideological world they come from, but many in the Israeli public do not share these values.
When Israeli lawmakers legislated Basic Law: Human Dignity and Liberty, they never imagined that the Supreme Court, under former Chief Justice Aharon Barak, would turn the law into a de facto constitution. Barak expanded the authority of the law and adapted it to apply to a host of areas that the legislators never meant to address. They certainly never intended to put the Knesset's power to legislate laws at risk. But what does it matter? Think about those three words: What is human, what is dignity and what is liberty? You can attach any interpretation you want to them. How does this align with the people's right to decide their own fate – a fate different than the one decided in a creative interpretation by the Supreme Court justices? And why does the justices' interpretation override any other interpretation?
At a certain point in our short history as a state, when power shifted from the Left to the Right in the late 70s, the Supreme Court assumed the role of gatekeeper. Not to defend Israel's democracy, but rather to defend the Left's hegemony in a state where the leftist camp had just lost the exclusive leadership of the Zionist enterprise.
This clearly defined political camp has its legitimate interpretations of issues pertaining to religion and state, the economy, social issues, culture, ethics, the military and more. But while their interpretation is legitimate, it is not the only one. Ultimately, however, with the help of legal acrobatics and controversial views on democracy, and above all, the assertion that a justice's interpretation carries more weight than a legislator's, the citizens of Israel were robbed of the right to decide for themselves.
Try not to take their warnings of "the end of democracy" and "tyranny of the majority" and "an attack on human rights" too seriously, or any of their other slogans, designed to keep us from seeing the plain truth: that over the last several decades, the famous checks and balances system has been compromised. The MKs and the government abandoned their power and handed the will of the voters over to the legal branch to with as it pleases. The legal branch, for its part, has been grabbing power without restraint or oversight and acting as a sort of super-branch – forcing its controversial values on us with its interpretation.
The current battle in the government over the so-called override provision, which would enable the Knesset to reinstate laws overturned by the Supreme Court, is perhaps the most important battle that has been waged here since the establishment of the State of Israel. The provision could restore a saner version of the democratic playing field by reinstating the healthy balance between the three branches and by bringing the fundamental Zionist vision of a Jewish nation-state back into the heart of the legal system as a legitimate prospect. The campaign to rein in the court actually aims to put a stop to the court's longtime efforts to transform Israel from a Jewish state into a "state of all its citizens," or, more accurately, a "state of all its nationalities."
The sane thing would be to rethink who can even petition the court. Only someone who was directly harmed should be able to file a petition, not petitioners who simply don't agree with something that is happening to someone else. They shouldn't be able to decide that whatever it is that irks them is universal and therefore outweighs any other view. The court, for its part, should behave like an institution that makes rulings in accordance with the law, not like a philosopher life coach.
Generally speaking, the phrase "under the law" bores Supreme Court justices. In fact, the way things stand now, unless the legislative branch's power is restored, any law it legislates, even if it builds on the court's own ruling, has very little worth. With the power of interpretation, a justice can always come along and claim that it somehow contradicts a basic law and strike it down.
If you think that this is just a post facto analysis of reality, note what former MK Uriel Lynn, one of the authors of the law, said back in 1992, before the fateful vote: Honorable MKs, all the concerns that have been raised here during the discussion were well known to the committee, and we addressed them during our own meeting. After 44 years, let us say to the people of Israel: yes, we will be daring and give you a basic law: human dignity and liberty."
"Despite the hesitations, despite the problems, we want at some point to draw a line and say: We won't tell you that it's impossible anymore. We will say: We are willing to try to do it. And I say to the members of the Knesset: Let's make every effort. The power has not been handed over to the legal system; the power remains here, in this house. And if, Heaven forbid, this experience will reveal that we were wrong and that the interpretation of the law does not align with the original intent of the legislative branch, then the Knesset has the power to change the law."
You see? Go back and read about the original intent of the legislative branch. Then, you'll see how our learned friends from the Left are lying to us. They understand all too well that an override provision would spell the end of the fortress that the Left has worked so hard to build so that they could indirectly exert their power over the ignorant masses, which keep electing the wrong government over and over. The battle over the court's power is the most important battle waged here since the establishment of the state – it is a war for the independence of the Israeli public and their freedom to decide their futures for themselves.
