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The claims about "the end of democracy" stem from democracy being identified with values of a well-known group that until recently was accustomed to steering the Zionist ship on its own. As far as they are concerned, democracy means them, and any change to the old order means an end to the way things are. Let's make no mistake - these voices are the ones that speak for the large majority of the Supreme Court. Even the justices think that if their power is checked and oversight applied to their rulings, it will lead to the "end of democracy." See the speech by Chief Justice Esther Hayut at Nuremberg (!): "The historical events that took place there must teach us about the attempts to rein in the Supreme Court." It's unbelievable.
"The end of democracy" has been with us since the state was founded. I happened across a collection of old news articles, all of which carried the same message. Labor party official Gad Yaakobi warned in 1988 that "democracy is in danger;" in 1990, legal scholar Gabriel Strassman mourned "the day democracy was put to death." Yehuda Hans Klinghoffer, dean of the Faculty of Law at the Hebrew University of Jerusalem, warned as early as 1960: "Contempt for legalists is a danger to democracy."
In January 1961, some 200 people gathered at the Israeli Journalists Association, led by professors from Hebrew U., who warned about the "danger to democracy." In the summer of 1975, thousands of members of socialist kibbutzim marched under the slogan "danger to democracy" in condemnation of the Gush Emunim settler movement. And more endings and death and destruction and loss and ruin and so on and so forth. One of the slogans at that demonstration was "The Knesset, not the synagogue, will decide." Not a decade passed and the protest leaders transferred the power of decision to the court. What happened to make that occur? The Right went into power.
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On a few occasions, I've heard Professor Meni Mautner lecture on the politicization of the law. Since the political upheaval of 1977, the Left has lost its hegemony. That group "moved its political activity … from election politics - which is the politics of the Knesset - to the Supreme Court, making it into an institution that directs politics." Mautner looked into all the petitions MKs filed from 1977-2005 - all 250. Half of the petitions were submitted by MKs from Meretz, Labor, and the now-defunct Shinui, parties. "Their petitions were always about political issues. The Right filed petitions, too, but always about violations of someone's personal rights - never about political battles," he explained.
"The Supreme Court went along with that group because since its first day in 1948, it has been the most liberal government institution of all the government institutions, an institution that functioned as the most important agent in injecting western liberal secular values into Israel's political culture. The alliance between that group, the pro-western liberal secularists… and the Supreme Court appears obvious," Mautner said.
Mautner argues that there is no conspiracy, but rather deeper issues at work: "the things that are never explicitly stated, the hidden cultural understandings of people who have identical cultural identities and worldviews, are much stronger. There is no need to talk about the most important things; everyone operates in total synchronization." In other words, the group is fighting for its life, so the dying gasps of its spokespeople are clearly audible.
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I've heard some of my friends on the Right express anger about the insistence on rolling the Immunity Law back to its 2005 version. "Let the court decide," they say. But what will they say to the people who don't believe the Supreme Court? Who don't believe that the investigations and consistent leaks against Prime Minister Netanyahu are innocent, and that he will be judged fairly? "Personal legislation" appeared on the scene long after personal enforcement, or as it has been enshrined in the media discourse: selective enforcement. In one of his last speeches, Moses commanded the judges of Israel: "You shall not be partial in judgment." (Deuteronomy 1:17) That command is usually interpreted as an order not to be swayed by the defendant's strong public image. But it also contains a call not to bias the trial of a powerful person in favor of those who are weaker than they are - in other words, selective enforcement is forbidden. In recent years, comparative articles have been published which prove that in many cases, the police and the State Attorney's Office treat elected officials who are not Netanyahu differently - even if they allegedly committed similar offenses, no investigation was opened.
I'll go back to the point Amnon Lord underscored this week, which is important in understanding the problematic dynamic of the system. In an interview with Makor Rishon reporters Yehuda Yifrach and Netael Bendel, State Attorney Shai Nitzan was asked about his decision that positive media coverage can be considered a bribe - why apply that legal precedent to Case 4,000? Pay attention to his answer:
"Every legal precedent has to begin at some point. In Case 4,000, for example, there was no dispute and everyone thought an indictment for bribery was correct, even though it wasn't envelopes of cash but rather biased media coverage. So what - because we're talking about the prime minister, we'll postpone the precedent for another time? … Is positive coverage considered an offer of a bribe? I think that even by objective standards, a serious newspaper article is much more important to a public figure and everyone [than money]."
Aside from the attack on freedom of the press, this is an admission that the "bribery case" is nothing more than a precedential interpretation by the State Attorney's Office that was formulated for one person, Benjamin Netanyahu. Between the lines, one can see how a case can be cooked up against anyone the system wants to harm - an incident is taken and interpreted in the most serious, precedential light, and to hell with the will of the voters.
Does that sound like an exaggeration? This is what Attorney General Avichai Mendelblit said about starting the job in February 2016: "As soon as I got there, the state comptrollers and the police threw a mess of things in our laps on a bunch of issues - remainders of the 'Bibitours' and the Prime Minister's Residence affairs, all sorts of bits of small stuff like that, things that seemed to be borderline gossip, that if it wasn't the prime minister, nothing would be done about them. But nevertheless, I decide there is a need to look into them." That is the famous fishing tactic. Something will eventually be hooked.
For the thousandth time: thus far, the instances in which investigations have been opened against justice ministers or police appointments, most of which concluded with ringing exonerations, have not been probed. Was it only by chance that "serious crimes" were discovered involving right-wing figures Yaakov Neeman, Rafael Eitan, Avigdor Kahalani, or Reuven Rivlin?
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It's not democracy that is in danger, but rather the narrow way of interpreting it that was forced upon us by former Chief Justice Aharon Barak's school of thought at the Supreme Court. Democracy isn't just minority rights, but first and foremost rule by the people, which is how the minority receives its rights. Barak's approach took away the people's ability to decide their own values through public debate and discussion, and in the name of the law forced its own values upon us, defining them as the "essence of democracy," without having been given the authority to do so.
So until we are convinced that this isn't what's happening and they're working without bias, we'll restore the immunity law to its previous form to tamp down the hunger to decide for us the identities of the elected officials we voted for against their will. At the same time, It's important to carry out the necessary reforms to the court itself; they are vital to strengthening Israeli democracy, and if they signify any and, it's an end to the rule by a legal oligarchy and the restoration of the people's sovereignty.
Dror Eydar has been appointed as the next Israeli ambassador to Italy
