The Supreme Court under Attack, Democracy the victim


The attack on the Supreme Court and with that the attack on Israel’s democracy will rapidly gain speed now that the Government voted on and approved the new law to limit the authority of the court and allow the Knesset to overturn decisions by the court through legislation. Even though it may not be brought before the Knesset this week because a majority will not be available, the coming weeks will see this law most likely being approved.

Both those who advocate restricting the authority of the Supreme Court as well as those opposing it, claim that Israeli Democracy is at stake here. Those against, claim it will destroy democratic principles, those in favor say it will restore those values.

However, if democracy were taught properly in Israeli schools, everybody would understand what is really going on. Democracy is not a simple structure and it has many aspects open for interpretation, but the principles are very clear.

All democracies are based on the principle of “Trias Politica”, the “Separation of Powers” which was developed by the 18th century French philosopher and politician Baron de Montesquieu. The principle states that the political authority of a state should be divided into three branches, a legislative branch, an executive branch and a judicial one.

·        The legislative branch is responsible for developing and enacting the rules and laws that the country should be governed by             and allocate the money for this.
·        The executive branch is responsible for implementing the rules and laws devised by the legislative branch
·        The judicial branch is responsible to ascertain that the executive branch acts within the limits of the laws developed by the               legislative branch while making sure at the same time that those laws are not in conflict with existing legislation or with basic         rights.  


Israel of course does not have a constitution (and the continued obstacles placed in the way of developing a constitution are political and religiously motivated) and the alternative that is in place, come in the form of so-called Basic Laws. These Basic Laws are functioning as a de-facto Constitution and are used by the Supreme Court to rule. The interpretation of these Basic Laws by the Supreme Court and the consequences thereof are at the core of the conflict between the Israeli government and the Court.

Education minister Bennett keeps repeating that it is time to return to a real separation of powers and allow the government to govern. It sounds like a very noble goal but Bennett and his colleagues (in particular Justice minister Ayelet Shaked) are very careful not to discuss the true consequences of the steps they are trying to implement now.

The Supreme Court is not annulling legislative efforts by the government and the Knesset for political reasons. Laws such as those concerning the draft of Yeshiva students, the treatment of refugees and others, are laws that go contrary to existing legislation in the form of Basic Laws and it is the duty and the job of the Supreme Court to make sure that new laws enacted by the legislative branch do not clash with already existing laws. While many loopholes exist in the protection of the Basic Laws from political assault, the limitations, both judicial and procedural, are (until now at least) sufficient to protect the country and the population from unbridled behavior by the legislative and executive branch of government.

The situation in the U.S. is in many ways simpler for the obvious reason that the United States has a Constitution. While Montesquieu is credited with formulating the principles of modern Democratic government, the Founding Fathers of the United States had the vision to translate those principles into reality and already in 1787, the American Constitution was formulated (and ratified and implemented shortly thereafter) and ever since, the United States is governed by it. One very important aspect of the Constitution is the founding of the American Supreme Court. The Supreme Court is the highest judicial body in the United States, but in addition to its judicial power, it also has what is generally termed, the power of judicial review. This means that any legislation or activity by the legislative or executive powers, deemed in violation of the constitution may be struck down. This mechanism enables American democracy to survive the many assaults on it and guarantees that, while governments, congresses, and senates may come and go, the Supreme Court will be there to prevent the basics of the democratic system to be defeated.

And, while until now, the situation in Israel, even with the absence of a Constitution, has been similar and the Israeli Supreme court has stood in the way of many attempts to rob the Israeli public of its democracy, the new law that is being proposed would seriously harm this status quo and would destroy the Trias Politica that is the basis and the guardian of democratic practice.

Bennett and Shaked keep hammering on the fact that the Supreme Court has three times stopped the government from violating basic human rights in the case of the refugees and are repeatedly using the inhabitants of the South Tel Aviv quarters as pawns in their attempts to appease public opinion and convince the public that their intentions are honorable and they should be supported in their fight to protect the Israeli public.

But Bennett and Shaked, and of course their collaborators  Smotrich and Yogev, are looking at the big picture and this includes both the plans they have for the “Greater Land of Israel”, the future of the Palestinian population in the occupied territories as well as the “Jewish” character of the State of Israel.

Once the Supreme Court has been crippled, nothing will stand in the way of this ultra-right government to have their way with issues such as illegal settlements, land theft, and eventually, annexation of occupied territories, the rights of Arab Israelis, the enactment of “Jewish” law, and many, many more issues that will rapidly turn Israel into a real Apartheid state in a new Jewish version.

Moreover, it appears that Bennett and his friends forget what the late Arik Einstein, the popular Israeli singer, told all of us long ago: the wheel keeps turning, and today you are on the top and tomorrow you are on the bottom. It may be hoped and believed, that at some point the Israeli population will come to its senses and throw out this fascist government that has been tormenting us for so long and replace it with more sensible politicians (once we will have those of course). And then, with the Supreme Court a lame duck, these sensible politicians will also be able to do what they like, with disregard for anything and everything and very quickly they will like it so much that they will stop being sensible.

Of course, maybe Bennett did think about this and is planning new laws that would make elections superfluous, since, in his eyes, the population anyway wants what he wants.  And the Supreme Court will not be there to stop him.

At least, if Bennett and his friends have their way, one too often used oxymoron may be put to rest: “Israel is a Democratic and Jewish State”.

It will be Jewish only.