The opposition who cried wolf: Why the new Likud bill is no threat to democracy

With a new controversial Likud bill limiting MKs’ standing in the High Court, the Left needs to remember that it doesn’t own democracy.

By
June 23, 2016 19:43
4 minute read.
Likud MK Yoav Kisch

Likud MK Yoav Kisch. (photo credit: Courtesy)

 
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In all likelihood, you’ve heard the story of “The Boy Who Cried Wolf.”

You know, Aesop’s Fable about a young shepherd who thought it was funny to say a wolf was coming to attack his flock when it wasn’t, until one day, he cried out that a wolf was coming, and no one believed him anymore, and the wolf ate all his sheep, and in some re-tellings, ate him, as well.

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Hebrew speakers know about the tale too. There’s even an Israeli idiom for crying wolf: Ze’ev, ze’ev, which translates literally to “wolf, wolf.”

And yet, it seemed on Thursday that some opposition MKs could use a refresher course on the story that most of us learned in preschool, with over a dozen of the Knesset’s resident prophets of doom once again predicting the end of Israeli democracy.

We’ve been hearing these cries for years now, but the death knell still hasn’t come. Israeli democracy is still alive and kicking, to say the least.

The latest reason for crying ze’ev, ze’ev over our democracy’s demise seemed especially preposterous: A bill that would limit MKs’ standing before the High Court.

Knesset House Committee chairman Yoav Kisch (Likud) does not think MKs should be petitioning the High Court when they lose a vote in the Knesset, saying that the current situation, in which this happens fairly often, violates checks and balances, which are a necessary part of a democratic system.



The opposition says that this weakens democracy and the courts.

This is not a judgment call over whether the bill should pass or not.

But the idea behind it certainly is not undemocratic, and should be judged on its merits or lack thereof. It seeks to strengthen an element of democracy, which, currently, has been made subordinate to another part of democracy that is more dominant in Israel. The views on which element should take priority are divided roughly on party lines.

Former Supreme Court president Aharon Barak, the father of Israeli judicial activism, has said he modeled Israel’s practice of judicial review on the US, so let’s look there on this issue.

It’s nearly impossible for members of Congress to behave the way MKs do in the system on which Israeli judicial review is based. Whether that’s good or bad is a matter of opinion, but Aharon Barak, the high priest of judicial activism, beloved by the Left, didn’t base his ideas on the American court system, because he thought it was a less democratic than Israel’s.

The court system in Israel is among the most activist in the world. Politicians on the Left and some in the Center like that; they think it makes our democracy stronger and prevents a tyranny of the majority.

The Right points out that judges are unelected and mostly unaccountable to the public, and argues that giving the judiciary branch of government power to intervene in the elected branches – the executive and legislative – weakens democracy.

Then there’s the idea of checks and balances, or separation of powers in a democracy. Israel does not excel in this area, in any direction. Everyone is in everyone else’s business.

The most glaring example of this shortcoming is that the executive branch is mostly made up of members of the legislative branch. Ministers are almost always MKs at the same time.

This isn’t unique to the Israeli system.

What is unique to the Israeli system is the “Mini-Norwegian Law,” which claimed to be trying to solve the problem, but was really just a baby step. In Norway, the law states that ministers have to resign from their seat in the parliament to allow more, active legislators in, but if a minister is fired, he or she gets the parliamentary seat back and the replacement leaves. The Mini-Norwegian Law, in Israel, allows, but does not require, one minister per party to resign from the Knesset under the same terms.

This has resulted in a grand total of four ministers or deputy ministers not being MKs. Some separation.

The Right in Israel, however, is more hung up on the High Court’s intervention in the legislature, partly for the reason mentioned above, but also because they feel that the court should not have undue influence on a different branch of government. The court’s reach in the Knesset goes beyond declaring bills unconstitutional – based on Basic Laws, since we don’t actually have a constitution – it has called for the Knesset to discuss things more thoroughly, among other interventions in the legislature’s work.

At the same time, the court has rejected petitions from MKs that deal totally with parliamentary procedure and, as Kisch pointed out, former Supreme Court president Asher Grunis expressed concern over the increase in appeals from lawmakers.

In summary, the Left thinks a powerful judiciary is a priority in a democracy, while the Right thinks separation of powers is more important and that decisions by elected officials should be emphasized. There are intelligent and legitimate arguments for both sides.

“This is undemocratic,” or even worse, “fascism,” is not an intelligent argument in a case like this. Open debate is also an important part of democracy, and delegitimizing differing opinions undermines that.

The Left does not own democracy.

There are other ideas of what that democracy means and what its priorities should be.

In the end, like the boy who cried wolf, the Left will only hurt itself by repeating over and over that Israeli democracy is dying. No one will believe it anymore.

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