Bring democracy back

A Fresh Perspective: Israeli democracy is under constant attack.

June 20, 2013 14:19

YARIV LEVIN 370. (photo credit: Wikimedia Commons)

Israeli democracy is under constant attack. Much focus is given to the outside threats caused by the instability of the Middle East, where the Jewish state is the only constant and stable democracy.

However, the state’s democracy is also threatened by internal elements that have stopped believing in the democratic process of majority rule and have started pushing forward their agenda through other means.

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One of the few legislators in the Knesset who has constantly strived to protect Israel’s democratic character is MK Yariv Levin of the Likud.

The response of the media to his efforts has been atrocious: instead of thanking him for strengthening Israel’s democratic values, he has been accused of threatening them.

A few weeks ago, during an annual conference organized by the Israel Bar Association, Levin announced that he would use his new role as coalition chairman to continue pursuing his legislative agenda of granting more power to elected officials, and limiting the power of courts to intervene in policy decision-making. Once again, Levin was accused of threatening Israel’s democracy.

In order to allow for proper evaluation of the merits of Levin’s proposal, I will provide an analysis of the various issues surrounding his agenda, including a brief discussion of the merits of democracy and some background on Israel’s legal system.

Democracy’s merits

Various forms of democracy have been around for almost 2,000 years. The term “democracy” itself comes from the Greek demokratia, which means “rule of the people.”

In modern times, democracies have flourished as an alternative to various forms of dictatorships that existed around the world, especially European monarchies.

The goal of democratic reforms and revolutions is to take the power from an individual ruler and give it to the people.

In order for the people to rule themselves, they need a way to make decisions.

Democracy, through majority rule, provides the framework for decision-making.

It is important to highlight the deeper meaning of democracy. While in other regimes, an individual or small group of people make decisions for others, in democracies the people rule themselves. In the age of nationalism, this idea translated into the ability of a nation to rule itself: self-determination.

In the case of Zionism and Jewish nationalism, democracy became the way that, after 2,000 years of exile in which Jews were ruled by foreign entities, the Jewish people could now rule themselves and collectively make national decisions.

Judicial review in Israel

Israel’s early history was one of exemplary democracy. Every Israeli citizen had the right to engage in the democratic process, and every vote was worth the same whether one was a regular citizen, a rich man or a judge.

In the early years of the State of Israel the courts would interfere in the democratic process only in order to guarantee its functioning.

For example, in the famous Kol Ha’am case, the courts intervened in a democratic decision to ensure that the value of free speech, which is essential to the democratic process, would be guaranteed.

The right to judicial review exists in many countries around the world. This right gives the courts the power to cancel democratically passed legislation based on values expressed in the constitution of the country.

Since Israel has no written constitution, the courts never had any right of judicial review.

While there had been attempts to legislate a constitution already in the period of the state’s founding, these attempts were unsuccessful. Rather, a decision was made to legislate “basic laws,” which would be regular laws based on constitutional topics.

Once all the necessary basic laws would be passed, the Knesset could then regroup these laws into a full constitution and pass it as such. Until then, nothing made these laws any different than all other laws passed by the Knesset, aside from the title of “basic laws.”

In 1992, the Knesset passed two new basic laws that dealt primarily with fundamental rights. In the landmark Mizrahi Bank vs Migdal Cooperative Village case, the High Court of Justice, led by justice Aharon Barak, decided to interpret this new legislation as granting the courts the right of judicial review. Of course, nowhere in these laws were the courts granted such rights.

What, then, was the justification for the court’s radical interpretation? Barak differentiated between what he called “formal democracy” and “substantive democracy.”

Formal democracy is democracy which he claimed to be completely technical, based only on the mathematics of majority rule, without any ethical claim. This, according to Barak, was not enough. True democracy also needs substantive democracy, where basic values and human rights are protected. Who is to protect these rights? Of course, Barak, being a judge, believed that only judges maintain the mandate to do so.

In just a few sentences, Barak managed to completely reverse the meaning of democracy.

Majority rule became nothing more than a formal aspect of democracy. The deep ethical justifications for democracy allowing for self-rule became obsolete.

Democracy became the rule of judges. Out went the great idea of the Jewish people gaining self-determination after 2,000 years of exile, in came the idea that “enlightened” people are the ones who need to make decisions on behalf of the nation. Democracy became nothing more than a new form of dictatorship led by judges. Prof. Ran Hirschl of the University of Toronto called it a “juristocracy.”

Democracy and liberalism

The source of Barak’s mistake comes from his inability to differentiate between two great ideas: democracy and liberalism.

While democracy is about self-determination through majority rule, liberalism protects individual rights and limits the government’s ability to interfere in its citizen’s lives. However, democracies can be non-liberal, and liberal countries can be undemocratic.

These are two sets of values, both of which are of great importance, but which are not identical.

For example, one can imagine a monarchy in which the king decides not to interfere unnecessarily in his people’s lives. In fact, history has shown that some kings were quite liberal towards their subjects. On the other hand, a democracy can decide to elect extreme elements that will severely hurt the human rights of the country’s citizens. One need only look at Egypt’s new democracy to see a democratically elected government that is un-liberal.

The question then rises as to what is preferable: democracy or liberalism. As someone who believes both in democracy and liberalism, my answer is clear: democracy must always remain, as the way in which we make decisions. Liberalism must be advanced through democratic means. The Israeli Supreme Court decided otherwise, when it decided to hurt Israel’s democratic character in favor of its interpretation of liberalism – an interpretation that is not even accepted among the various supporters of liberalism.

Protecting Israel’s democracy

Recent academic studies by various professors such as Hirschl or Menahem Mautner of Tel Aviv University have shown that these recent attacks against Israel’s representative democracy come from the elites who have become unhappy with the people’s choices in elections. As long as democratic decisions brought about the government for which these elites yearned, democracy was legitimate in their eyes. Today, since the sociology of Israel has changed, the results of democracy are no longer acceptable – and therefore, in their eyes, the final say must be given to judges who, because of their nomination process, have remained a part of these old elites.

The media, another bastion of these old elites, attacks anyone who tries to bring back the power to Israel’s democratically elected parliament.

MK Levin, who is proposing to let Israel’s citizens have the final say about what gets done in their country, instead of the judges, has been accused of attacking the state’s democratic principles. Those who know about the real attacks that have been waged on Israel’s democratic character by Israel’s various elites know that what he is doing is quite the opposite: Levin is bringing democracy back to the State of Israel. ■

The writer is an attorney, and graduated McGill University Law School and Hebrew University’s honors graduate program in public policy.

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