Former Supreme Court Chief Justice Aharon Barak is worried about the future of Israeli democracy – and so am I. Most of my worry stems from the fact that senior members of the legal and law enforcement systems in Israel, both past and present, are advancing personal agendas.
Time after time I have heard Barak say, "Once a judge, always a judge." This assertion implies that even after they retire, judges must refrain from publicly commenting on controversial issues. Such comments have a tendency to raise suspicion that while they were in active service, their rulings may have been biased in a way that would advance their worldview – a decidedly undemocratic bias.
Democracy is not tyranny by a majority. It certainly isn't a tyranny by a "progressive, enlightened" minority, as Barak has described it. A minority that has managed to impose its will on many aspects of our lives with values that generally do not reflect the majority's wishes. As far as Barak is concerned, Supreme Court justices are a homogeneous family into which a stranger cannot be accepted. It is no wonder, therefore, that public trust in the Supreme Court has been shaken. A recent Supreme Court ruling on commerce on Shabbat proved that the result of a given deliberation is not determined by the law but rather by the judge's identity.
Concentrating too much power in one place is never a good thing and this principle certainly applies to the Supreme Court. Those who take certain powers without any legal justification are guilty of amassing too much power in their own hands without the authority to do so. Anyone who does that has no right to criticize others for attacking democracy.
When Barak told Israeli daily Yedioth Ahronoth recently that he identifies with the protesters on Rothschild Boulevard who stage demonstrations against government corruption every week, he made his political stance clear. When he praised President Reuven Rivlin and Finance Minister Moshe Kahlon, every Israeli citizen understood that it was a statement against Prime Minister Benjamin Netanyahu. This is how he enlisted in the political war against the rule of the Right.
So when he accuses the justice minister of failing to understand democracy, just because she thinks that it is the Knesset's job, not the court's, to determine the codes of behavior in the country, he is demonstrating legal aggression, where he should be showing restraint. That is why in a real democracy, not everything is justiciable, contrary to Barak's famous refrain.
Israel is a Jewish state, not a state of all its citizens as per Barak's view. Jews returned to their historic homeland to realize their grand Zionist dream, not to establish a satellite of San Francisco on the Mediterranean. The key threat to democracy today is actually posed by Barak's disciples and the old leftist elites in academia, culture, media and legal power centers in Israeli society. These elites look down on anyone who doesn't think the way they do, and they are convinced that marginal groups stole the state from them, because it was only their names on the deed. They are a small, frustrated minority that has grown tired of trying to replace the ruling government democratically and is now willing to break the rules to topple the right-wing government.
This is not the way to build a strong society that adheres to the rule of law and defends democracy – this is the way to destroy it. It seems that Barak was wrong in ascertaining the true threat to Israeli democracy.
