by Emmanuel Shilo, based on article originally published in Besheva, translated and adapted by Hillel Fendel
Privileged elites who believe that their vote is worth more than others are taking part in large numbers to conduct stormy and disruptive protests in the name of democracy – demanding to perpetuate the situation in which the minority tramples the majority. There's room for compromise, but only if the principle of "majority rules" is accepted by all.
1. Even those who hate fighting and like to compromise will agree that there are some compromises that don't work. There are times when implementing half an idea actually means to kill it. Consider, for instance, the famous "compromise" offered by King Solomon to the two women who claimed the same baby as their own. Slicing the baby in half appears, on paper, to be a technically logical idea – but everyone knows that it cannot be acceptable.
Or take one of the clauses in the judicial reform package currently on the way to being passed in the Knesset. The clause in question deals with one of the central issues in the reform package: that if the Supreme Court overrides and nullifies a duly-passed Knesset law, the Knesset can hold another vote, and if 61 MKS – a slim majority of the entire Knesset, as opposed to a majority of those present – vote to reinstate the law, it shall be reinstated. The opponents of the reform say that such a majority can nearly always be found, since the government in power has at least that many MKs, and therefore this gives the Knesset nearly absolute power over the Supreme Court. It has thus been proposed as a "compromise" that the votes of a "special majority" of 65 MKs be required in such a case.
However, such a compromise would make things even worse, not better! It would actually give the Supreme Court even more power than it already has now, at the expense of a weakened Knesset and government! How so?
The calculation is simple: The very authority that the Supreme Court took for itself to void Knesset laws is currently a matter of sharp dispute. The "override clause" that the new reforms seek to enact will actually confirm, officially and above-board, this authority that former Supreme Court Chief Justice Aharon Barak and his partners, like thieves in the night, coopted for themselves under the radar. And if until now the judges used this authority with some degree of self-restraint in nullifying Knesset decisions, this will now change: They will have the official right to cancel laws, and will then say to the politicians: "What's your problem? If you so strongly believe in this law that we overrode, use your new clause to reinstate it!"
But this is easier said than done. Even if only 61 MKs are required, this turns every back-bench MK into a king, allowing him to squeeze out any concession he might demand, in the form of funding for pet projects, a spot on a desired Knesset committee, or other, in exchange for his vote. But OK, it's still doable. However, if 65 MKs are needed, it becomes practically impossible. For currently the coalition numbers 64 MKs, thus requiring one opposition MK to vote for an overridden, government-supported law. Where will such an opposition MK ever be found who will betray his partners and join the coalition cause?
And thus, instead of an automatic majority for the government that the opposition so strongly opposes, we will remain with automatic veto power of the Supreme Court – which is exactly what the reform is coming to uproot. And so, this "compromise" is not at all that, but rather a way of killing the reforms before they are even born.
Certainly compromise is sometimes a good idea – but in order that what remains after the compromise retains some value, the proponents of the judicial reforms must come to talks with the opposition from a position of strength. For instance, the reforms must first pass their first Knesset reading "as is," despite the loud protests – as is happening these very days. The other side will then realize that the train has already left the station and that, for the upcoming final readings, they must make proposals that truly deal with the current problems and issues head-on, and not merely suggest cosmetic changes.
2. Among the unacceptable tactics and false talking-points used and disseminated by the organizers of the anti-reform protests, one of the most unfounded and infuriating is the claim that the reforms will render Israel a non-democratic country. The truth is that there is nothing more democratic than these reforms, which rehabilitate the most basic concept of "majority rule," which has become very weakened. On the other hand, there is nothing more anti-democratic than the balance of powers that currently exists between the government branches: The judicial branch is unrestrained in its ability to trample the others, while the power of the executive and legislative branches continues to become weaker and more restricted. This is not only because of the overruling of laws, but also because of the power of "legal counsels" to determine what may or may not be done.
But, they condescendingly explain to us, "majority rule" is merely "procedural democracy," that is, the democracy of primitive ignoramuses. Genuine democracy, they say, is that which is inspired by the spirit of our Grand Rabbi Aharon Barak and his followers. It is democracy based on the values of progressiveness and enlightenment, not those of narrow-minded and boorish nationalists and conservatives. "You have no right to void the 'democratic' character that forms the basis of the State," they tell us. As if Ben-Gurion and his comrades, the founders of the Israeli democracy, ever meant anything close to the elite oligarchical judicial rule that has developed over the years and that we must submissively accept.
3. Those who negate the reforms – can we call them reformophobes? – claim that restricting the Supreme Court's authorities will lead to the trampling of the minority by the majority. But the truth is that the situation today is precisely the opposite: The majority is trampled by the minority. When the Court nullifies decisions made by the people's elected representatives based on considerations of "not reasonable" or "not commensurate," they are not acting by force of law, but by force of their own personal and ideological opinions. As such, who needs law studies, judicial precedents, and legal principles? And especially when their ideologies are those of a small minority in the country that has usurped control over the majority!
Another tool that enables the minority to trample the majority is the judges' creative interpretative approach. They use this to interpret laws in a manner that the legislators clearly did not intend.
It's been many years now that a very large public sector has been living with the sense that when they take a case to the High Court of Justice, or are taken by others, the game is rigged. The feeling is that the values of the left and the progressives will always be preferred over traditional Jewish and nationalist values. Examples of this are too many to count, and the natural result is a frightening drop in the public's trust of the judicial system. For years we have been crying out for a bit less of a tilt to the left and a bit more justice – and we have encountered only a brick wall and refusal to implement any change. Even the most logical of demands – such as the paring down of the authorities of the government's legal counsel (sometimes called the Attorney-General), who currently has monstrous power, unprecedented in any western democracy – never received even a trace of attentiveness or willingness to discuss constructively.
Precisely because Israel's judicial system is so powerful, there is no choice but to reduce its reach in one shot. Without a quick, sharp cut of its authorities, it will know how to use the significant strengths it will still retain in order to restore to itself every authority that might be taken from it. There can thus be no "compromise" on this issue either, lest once again nothing remains of the reforms other than the paper they're written on.
4. A critical aspect of the protests is the downright violent tone, even calling for bloodshed, taken by some of the most prominent anti-reform leaders. One of them, a former IDF pilot who took part in the bombing of the nuclear reactor in Iraq in 1981, actually said that those who spoke of taking up weapons "to fight against dictatorship" were too lukewarm for his taste, and that the Prime Minister was actually "liable for death." Just imagine what would happen to a religious Jew who said that about a left-wing prime minister! How is it that the voice of protest against these calls is so weak, if it exists at all?
Interestingly, many of the most irresponsible statements against the reforms come from former IDF generals and officers who heroically risked their lives to defend Israel – and thus feel that the State is theirs!
Given that they saved Israel from its enemies, anyone who wishes to take control away from their own camp, even as a result of democratic elections, is a thief stealing the country from them. They feel that as long as real control of the country remains in their hands, via the media, academia, government clerks, and especially the judicial system, it's OK if the conservative camp wins the elections. But for the nationalist camp to actually take control and really rule? Totally unacceptable.
This is the spirit enveloping this entire protest – the protest of the privileged elites. They simply cannot accept the results of the democratic elections.
And so we say to the esteemed generals: You had a great merit in endangering your lives for the State of Israel, bringing about important victories, and remaining alive; don't debase it by cashing it in for a few coins of political advantage at the expense of the very democracy you helped save.