1.
The historical die has been cast. The legislation train left the station last week despite the mass protests and the almost uniform mobilization to attempt to block it by the non-democratic camp – namely those institutions where there are no elections and in which the higher echelons appoint their own successors: the media, academia, the economy, and the judiciary. Currently, several groups are attempting to bridge the divide and I hope they succeed. The problem is however that the protest leaders are refusing to engage in dialogue.
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Their evaluation of the situation is likely to be proven wrong. The Israeli media – naturally – presents a one-sided picture of this historic event. This leads the protest movement to believe that if they just make one more push the imagined Bastille they have created will fall. They are mistaken.
I am not trying here to convince readers of the justice of the constitutional changes; my recent meetings and conversations with serious people on the other side have shown me that it is almost impossible to present them with a picture different from the one set in their minds, according to which the political drama we witnessed over this past week in the Knesset is a "blow to democracy" and a "constitutional revolution." The chasm between the sides in the interpretation of the moves is too deep right now.
The question arises, is the idiotic historical interpretation spouted on a regular basis by the spokespeople for the anti-reform camp, who for so many years have stated that we are on the verge of becoming Germany and passing the Nuremberg Laws, something to be proud of. One can understand why they seek to replace politicians with judges. The latter at least are better educated and know how to restrain the wild rhetoric of the former.
2.
In any event, I will not try to explain here why the changes are the right thing for Israel, but I will attempt to persuade those of my readers among the protestors against the reforms, that the pro-reform camp is determined to pass the measures. Until you understand the depth of the pain and legal distortion as it is experienced by the other side (see my recent articles for an explanation) there will be no compromise. The pro-reform supporters are not people "drunk with power who wish to subjugate," as someone whose opinion I value wrote this week; they are however people who are "concerned for the fate of the nation" and they too have fears (and frustrations) that the judicial system in its current construction does not address.
You do not trust the politicians and prefer to deposit the management of the state with the justices of the Supreme Court sitting as the High Court of Justice. And it is not only the judges you trust; you trust also the legal advisors of the various government ministries, who in practice serve as representatives of the court. A known journalist wrote this week that the legal advisors are "professionals" whose presence "threatens the populists" and that they "show that not everything is about resentment and 'us against them.'" His conclusion was that "the professional circles are undergoing purge after purge" and that this is eroding oversight mechanisms and creating a situation of "fear of telling the leadership the truth." Like that journalist, you too are sure that this is the absolute and undeniable truth. That is not the way to engage in a dialogue of respect that fully takes into account the other, your political and ideological opponent.
3.
From my perspective, the above analysis suffers from what Freud called "projection." In an act of linguistic acrobatics, the above journalist projects on others the long-term behavior of the group that he defends. Since the establishment of Israel, for decades, the Supreme Court worked alongside the legislative and executive branches without taking over their role. But more recently the judicial system has behaved in line with the above description: what that journalist projected onto the political system actually happened in the legal system.
There were times when Aharon Barak was in the minority with regard to his unrestrained judicial activism; for example, during the period the Supreme Court was headed by Justice Meir Shamgar, who presented a different judicial line. However once Barak took the reins, he did everything to populate the court's benches with judges possessing a similar judicial perspective, worldview, and cultural habitat to his own.
The judicial appointment committee was thus a clone of the Barak school of thought, and judges in the lower courts knew that to get ahead they had to toe the line. They called it a "family." Thus, loyalty was more important than professionalism. Even a legal prodigy such as Prof. Ruth Gavison was unable to enter the gates of the Supreme Court, because she dared to criticize Barak's line. Just imagine what other prodigies failed to get on the Supreme Court because of extraneous considerations.
As a result, the court's oversight mechanisms were eroded and judges feared to tell the truth – in other words, to rule contrary to the party line. Aharon Barak inculcated among his successors a way of thinking that the ancient Greeks described as "hybris" and our prophets portrayed it in the words "I am, and there is no one besides me" (Isaiah 47:8). The thinking was "only we will save the state from corruption and failed management" and therefore not only has the Supreme Court dismissed laws on the grounds that they violate chapters of what he considered as the constitution (basic laws), but it is also willing to debate the legality of the basic laws themselves. A Supreme Court of that nature holds unrestricted power and therefore undermines the democratic system by placing itself above the other two branches of government! Moreover, there is no democratic brake that can be lifted in the event that laws are illegally dismissed. What will we do if the Supreme Court one day dismisses the Law of Return on the grounds that it violates Basic Law: Human Dignity and Liberty – which practically means canceling the Jewish state – what mechanism does the state currently have to override such an eventuality?
Based on that analysis, the proposed legislation prohibiting the Supreme Court from debating basic laws, in fact strengthens democracy. I ask not that you agree with me, but for God's sake, at least see how reality can be interpreted differently from your interpretation.
4.
The above-mentioned journalist also issued a warning to the majority camp that wishes to pass the reform: When elections come, the opposition may well win and "the present government knows that the tables will be turned, and new laws will be legislated." I think that is not a warning; it is a promise that we are not talking about the "end of democracy" and not about life-long appointments as is the case in the judicial system, but rather about publicly elected officials who are either voted in by the people or dismissed by them. In democracies, the opposition sometimes comes to power and appoints its judges. That is the reason that a court made up of judges appointed by publicly elected officials will be more diverse than a court of clones appointed by judges who unanimously pick those that adhere to their world view. And we have yet to mention the nepotism of the Supreme Court down the generations, giving one group a distinct advantage over the rest.
The assumption is that the bueurocrats are "professionals" while those appointed by the public are not matter-of-fact and not as successful as them, and therefore the level of the court will decline. Here as well, things can be seen differently: the professional staff aren't always of the highest level, their experience may be paltry and their performance in accordance. On the other hand, appointments made by publicly elected officials have proven to be successful. In the long term, the level of the functionaries and the level of appointments made by publicly appointed officials evens out. I am saying this out of my experience as an ambassador appointed from outside of the foreign ministry echelons. Experience here and elsewhere in the world shows that judges appointed by elected officials don't "owe them." Following their appointment, they act in a completely independent and professional fashion. Things are complicated and aren't dichotomic. On the beginning of the Hebrew month of Adar, this week the Knesset took the first steps to restore the lost honor of the sovereign - the people whoe elected it – on the way to a worthy balance between the branches of government.
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