1.
From the very beginning of the anti-judicial reform protest movement, I wrote that its main goal was to arrive at a constitutional crisis: a clash between the executive and legislative branches and the judiciary. In other words, a clash between the government and the Supreme Court.
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The past few months have sharpened the views of both sides and exposed them for all to see after decades of denial and feigned naiveté. The protest leaders believe that the current government does not have the legitimacy to rule (thereby erasing the voice of its voters); the Supreme Court remains the sole source of authority they are willing to accept. This is a practical translation of the "constitutional revolution" instituted by Aharon Barak as Supreme Court President. The legitimate attempt by the Knesset to turn back the tide even a little and check the court's unlimited powers is referred to by opponents as a "regime coup." Woe the irony!
That of course doesn't stop them from claiming their goal is to defend democracy.
2.
Now the protesters, the supporters of the Aharon Barak school of thought, the opposition parties, and most of the media are pushing as hard as they can for a constitutional crisis by getting the Supreme Court to strike down Basic Laws, thus bringing disaster upon us all. The Supreme Court itself defines Basic Laws as chapters of a future constitution, and therefore their normative status is higher than that of ordinary laws. It was through this distinction that the court struck down laws passed by the Knesset on the grounds that they contradicted Basic Laws. Now, when the Knesset has amended the basic laws in a way that is inconsistent with the worldview of opponents of the reform, there is talk of striking down the Basic Laws themselves. But the Knesset has never explicitly authorized the court to strike down its laws, let alone Basic Laws. So, what is the source of the Supreme Court's authority to do this?
The Attorney General has joined petitions against (!) the government over amendments to the Basic Laws enacted by the Knesset. Among other things, she justified her position based on the original doctrine of "unconstitutional constitutional amendment" and on "abuse of constituent power." This is probably insufficient as the doctrines were developed by the Supreme Court and do not come from a higher source of authority. Relying on them is like Baron Munchausen rescuing himself from the swamp by lifting himself out with his own hair. This puts the legislative branch above the other two branches and cements the status of the judges as an oligarchy that has taken for itself the authority that the sovereign – the people by means of the Knesset – never granted them. But opponents of reform and supporters of the current legal situation cry out "Democracy!" Woe the disgrace!
3.
But do not despair, Israel is not a widower. Retired justice Aharon Barak has come to their rescue. In an article he published about a week ago, he reiterated his idea that the source of authority to invalidate constitutional chapters lies in the Declaration of Independence. This is the "external anchor by virtue of which the Constituent Assembly was elected" he wrote, going on to say that the Declaration of Independence has been recognized as such and that it is by virtue of the Declaration that all Knessets have since then served in their two hats: as the legislative branch and as a constituent assembly. Barak illustrated this through a biological parable: "The Declaration of Independence is the mother who gave birth to the Constituent Assembly... The mother's DNA (the Declaration of Independence) was passed on to the daughter's DNA," The daughter being the first Constituent Assembly. Go argue with biology.
Video: PM Netanyahu speaks about judicial reform / Credit: Twitter/Prime Minister's Office
Barak claims that the declaration expresses the "will of the people," and therefore the constitution – in our case, the Basic Laws – "must express the vision of the people and its 'credo.'" The Supreme Court, in his view, is "the institution authorized to determine in a binding manner that the Knesset exceeded its initial constituent authority."
Who was there at the initial moment of the proclamation of the Declaration of Independence? To what extent did it represent the entire people in all its diversity and its different streams and parties? Did David Ben-Gurion himself see the Declaration of Independence as a document above the constitution? Of course not. But this is of no interest to Aharon Barak; he is neither a historian nor a sociologist. Barak uses the Declaration of Independence as a mechanism to create a source of authority – authority that gives the Supreme Court the ability to strike down Basic Laws, or, in other words, to debate constitutional chapters. There is almost no parallel for this in the world, and it is not for nothing that the only source Barak cites is the Supreme Court of India. What joy.
If, until now, we have failed to understand why Barak published his article on the eve of the fateful hearing, at the end of his article he implores the Supreme Court justices who are galloping toward constitutional crisis: "The court not only has the authority to do this, it has the duty to do so." And there we have it: The source of the authority to move forward with this irresponsible act and to invalidate amendments to the constitution is Aharon Barak in the role of Moses.
4.
But even the declaration at Mount Sinai, in the presence of Moses our Teacher himself, was not enough to establish the Torah as the constitution of the People of Israel. After 40 years of wandering in the desert, many of those who had come out of Egypt died and others joined the ranks of the People of Israel just before they entered the Land of Israel, a second covenant was enacted in the plains of Moab. Last Shabbat we read from the book of Deuteronomy: "These are the terms of the covenant which the Lord commanded Moses to conclude with the Israelites in the land of Moab, in addition to the covenant which was made with them at Horeb (Mount Sinai)."
This, too, was not enough to cement the constituent covenant. Therefore, Joshua ben Nun established two more covenants – like Moses, he did so at the beginning of his reign and towards his death. One at the altar on Mount Ebal: "... And there, on the stones, he inscribed a copy of the Teaching that Moses had written for the Israelites (i.e., the constitution) .... All Israel – stranger and citizen alike (i.e., the people) – with their elders, officials, and magistrates, stood on either side of the Ark, facing the Levite priests who carried the Ark of God's Covenant."
By the way, the late archaeologist Adam Zertal found this altar (I recommend visiting the place, it is a formative experience) and today the Palestinian Authority is trying to damage it. They understand its significance for our hold on the Land.
During the decades of Joshua's leadership, many residents of the Land joined the People of Israel, as did family members of those who had been to Egypt. Both groups were required to accept the initial covenant. Shortly before Joshua's death, we are told of a fourth covenant: "Joshua assembled all the tribes of Israel at Shechem. He summoned Israel's elders and commanders, magistrates and officers; and they presented themselves before God. On that day at Shechem, Joshua made a covenant for the People…".
5.
The four chapters in which the covenant between the People and its eternal constitution was established should also teach us something about the Declaration of Independence, to which Barak attributes, in his controversial article, the supreme source of authority for judicial review of the chapters of Israel's constitution. He was quick to put the Supreme Court above the Knesset and the "rebellious" government, and for him the initial covenant was sufficient, even though contrary to the biblical covenant, in real time it was not awarded that status.
Beyond the invented authority that violates the balance between the three branches of government and tips it in favor of the supremacy of the judiciary, his words also harm the standing of the Declaration of Independence as Israel's founding document that enables all of us – regardless of our different political and ideological views – to unite around it. The social consensus that the Declaration of Independence engendered across all Israel's camps, stemmed from its historical value as a declaration of intent rather than a binding constitution. That is no longer the case. The protest movement harmed the status of the army and security forces and used them to force the people to accept the minority opinion. Now, the Declaration of Independence is also being mobilized to serve as a political document through which an unelected minority can impose its opinion on the nation. All this, states Aharon Barak, is done in the name of "the will of the people." Woe for a language that has emptied of meaning.
Let us hope that Supreme Court President, Justice Esther Hayut, will rise above the madness that has enveloped us, and will not harm the Knesset's authority while it is (the Knesset) sitting as the constituent authority. It is a matter of life to us all.
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