(photo credit: KOBI GIDEON/GPO)
Israeli politicians love to invoke the principle of democracy to legitimize all kind of political measures and initiatives.
A case in point is the recent initiative by Likud MK David Amselem to promote a law that would provide an acting prime minister with judicial immunity. Backed by Justice Minister Ayelet Shaked, Amselem argues that his bill would prevent the judiciary from encumbering a democratically elected prime minister in fulfilling his duty. The initiative thereby prioritizes the principle of popular government over the rule of law, while ignoring that the latter, just like democracy itself, is a most crucial cornerstone of modern Western constitutions, that were built to guarantee the civil rights of citizens and protect them from abusive governments. It is typical for Israeli discourse to reduce the system of ideas that underpin modern Western statehood to the principle of democracy, while it actually entails so much more.
This is not only ignorant but also highly dangerous, because it enables developments that take Israel further and further away from the principles championed by the American and French revolutions.
Besides the principle of democracy, which Israeli politicians are so fond of invoking, Western states are also based on ideas such as republicanism – the commitment of a government to its citizens; civil equality – the equality of citizens under the state and the law; confinement of government power – meaning that no government, even if democratically elected, can act however it pleases and – especially important – the rule of law.
The latter means that a state should be organized and administered according to a set of formalized laws under which everybody is equal, rather than according to the changing opinions, ideas, assessment and moods of leaders, regardless whether these leaders are hereditary monarchs or elected democratically. Indeed, autocratic leaders such as Turkish President Recep Tayyip Erdogan, Russian President Vladimir Putin or Adolf Hitler often enjoy much popularity among their peoples and have been able to claim some kind of democratic legitimacy for their regime. To place the formalized laws above the leaders does not only mean that a minority can be protected from the majority. It also safeguards citizens from the arbitrariness of despotism and endows their lives with stability, as citizens can rely on the fact that there are certain rules of the game that are binding for everybody.
Nobody would accept a parking ticket for stopping his car at a spot designated for parking just because the democratically elected mayor of a town decided to issue one. Nobody would accept a prison sentence without having broken a law, just because a democratically elected prime minister’s personal opinion was that the person deserves it. And nobody would accept paying more taxes than the law requires just because a democratically legitimized finance minister arbitrarily decided to demand it. The rule of law means precisely that we wouldn’t have to accept such despotic and arbitrary decisions, because the law stands above the government, which is fully committed to it.
Hence, Amselem proves his fundamental disregard for this essential of Western statehood when he claims that “the public elects the prime minister in order to run the state and that’s the most important thing.” He even proves a lack of knowledge of the Israeli political system, in which the government is not even elected directly by the public, but by the parliament.
Furthermore, Amselem and Justice Minister Shaked are wrong when they suggest that the kind of immunity they would like to grant the prime minister exists in France. In France, like in many other countries, it is the head of state, the president, not the prime minister, who enjoys immunity of a certain kind. True, unlike in Israel or Germany, where the president fulfills a purely ceremonial function, the French president has strong administrative powers.
However, he heads the government together with a prime minister with whom he shares his powers and his immunity is confined. Furthermore, his term is limited to five years, after which he can’t be reelected.
In the Western world, protection from legal prosecution is often granted to lawmakers in parliament. This immunity stems from a time when the separation of powers was not yet accomplished, when there was no independent judiciary and when monarchs had a monopoly of executive government power and exclusive control about law enforcement authorities.
Its idea was to protect the lawmakers from government interference should they promote laws the monarchs didn’t like. In other words, it was born as a measure to protect the independence of lawmakers and to confine government power.
Amselem and Shaked’s proposal to grant such immunity to a prime minister promotes the precise opposite of what the immunity of lawmakers was to achieve. It shields the prime minister from the law rather than committing him to and confining him by it. The proposal therefore needs to be seen as part of a development in which the current government continuously tries to weaken the judiciary and its independence and to discharge the government from judicial and other forms of control. Other examples that express this pattern entail recent aspirations of the government to gain stronger impact on the selection of justices or to get tighter control over the Israeli Public Broadcasting Corporation, to name only these few.
All this is not necessarily undemocratic as long as the leaders who are given more and more authority and who are submitted to less and less control are democratically elected. But it certainly flies in the face of the principles of the rule of law, the separation of powers and the domestication of government force, which are most essential milestones in the actualization of freedom and civil liberties that guided the evolution of the modern Western states. As such it is also a menace to democracy, for once a government has assembled enough power it can easily ignore the will of the people. Yet, the reduction of civil freedom to the idea of democracy is endemic to Israeli discourse.
Besides Amselem’s current initiative to shield the prime minister from judicial prosecution, it figures most prominently in the recurring debate about the challenge to accommodate the aspirations of Jewish nationalism with the principle of democracy in the framework of the Israeli nation-state. But while democracy, taken in a narrower sense, and Jewish nationalism are not necessarily divided by a conceptual schism, a much bigger conflict exists between the ideal of having a nation-state committed to the Jewish people and the republican idea according to which a state is committed to its citizens.
Unless this and other concepts of modern Western statehood are not introduced into public discourse and instilled into of the awareness of its participants, the Israeli public lacks the essential tools to oppose the troubling current developments that increasingly marginalizes these principles.The author, a German-Israeli social scientist and journalist, holds an MA in sociology and is a PhD candidate at Hebrew University.
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