In recent weeks I have been researching the history of Private Members’ initiatives since the establishment of the state, to enact Basic Laws – laws that were designated to form chapters in Israel’s constitution, if and when such a constitution is finally enacted.
None of the religious MKs – neither national religious nor haredi (ultra-Orthodox) – ever initiated such a law, since the religious parties are opposed on principle to a secular constitution, arguing that the Jewish people already have a constitution given them by God – the Torah from Sinai.
However, when one reads the debates around the issue over the years, one cannot but be impressed that most of the National Religious Party MKs had a deep understanding of what democracy is all about, and were rarely caught making statements that demonstrated anti-democratic sentiments, or total ignorance of what makes a state democratic, such as those that have been pouring out of Bayit Yehudi in the past year.
Statements such as that made by MK Moti Yogev last July about razing the Supreme Court with a bulldozer, just because he didn’t like the decision of the High Court of Justice (HCJ) to demolish buildings in Beit El constructed illegally; that by MK Bezalel Smotrich who stated last Tuesday that his wife should be able to be in a maternity ward in which there are no Arab women (his wife added that she didn’t want her newly born child to be touched by an Arab doctor or midwife, or any non-Jew for that matter); or that by Justice Minister Ayelet Shaked last Monday about the Supreme Court acting contrary to the principles of democracy undoubtedly made some of the legendary National Religious MKs roll over in their graves.
The statement by Shaked is the most worrying of the three, since she holds an important executive position, and thus forms part of the face of the government of the “only democracy in the Middle East.”
Two of the arguments given by Shaked during her speech to the annual Bar Association conference in Eilat in which she slammed the Supreme Court ruling over the natural gas outline are particularly worrying: that democracy is the rule of the majority, full stop; that in a democracy there is a complete separation of powers; and that consequently the government should be allowed to govern, without interference.
Both statements, left unqualified, demonstrate ignorance at best and anti-democratic inclinations at worst.
Even if one does not accept in full the definition of democracy of former Supreme Court president Aharon Barak, one must realize that democracy cannot be defined as nothing more than the rule of the majority.
In a famous judgment of the Supreme Court in 1995, which heralded the “constitutional revolution” in Israel, Barak wrote: “Democracy of a majority only, which is not accompanied by a democracy of values, is a formal ‘statistical’ democracy. A real democracy is that which limits the power of the majority in order to defend the values of the society, in order to defend ‘recognition of the value of man, the sanctity of his life, and his being a free man’ (Article 1 of Basic Law: Human Dignity and Liberty....”
What this means is that what the majority wants, or agrees to, is not in itself democratic. If it were, then Nazi Germany could be considered a democracy since its regime was a elected by a majority of the German voters, and the Final Solution could be considered a democratic act, since the majority did not protest against it.
Thus, it is of the utmost importance that someone makes sure that side by side with the formal democracy the rights of the minority (those who are not part of the coalition) and minorities (be they national, religious or social) are defended. That “someone” is the courts, that issue rulings on the basis of what the legislature enacts.
As to the separation of powers, indeed, in the 18th century Montesquieu declared that in a democracy there must be a separation of powers among the legislature, the executive and the judiciary. However, in parliamentary democracies, unlike presidential democracies, the separation is not absolute, and in all democracies there is a system of checks and balances to ensure that none of the powers deviates from its sphere of authority, and that its activities conform to the constitution, where one exists, the laws enacted by the legislature and the rulings of the courts.
Thus, an interpretation of the separation of powers to mean that the government can do as it pleases, irrespective of what the legislature enacts and the court rules is unacceptable in a democracy. If a government decision or act contradicts a legislated or ruled principle, this is illegal, and must be changed.
The HCJ ruling which Shaked viciously attacked merely stated that while the natural gas outline in itself is legal, its stabilization clause, which prevents a future government from changing anything in the agreement for 10 years, is not, and that a renegotiated clause should be approved by the Knesset (the latter requirement corresponds with the recommendations of a 2008 study by Prof. John Ruggie and the International Financial Corporation of the World Bank, on stabilization clauses).
The problem with the gas outline is not that anyone denies that the government has an inherent right to sign such an agreement, but that in doing so it cannot circumvent the law and accepted principles.
As a result of her speech, in the course of last week there were calls to Prime Minister Benjamin Netanyahu to remove Shaked from the Justice Ministry.
It has recently been reported that there are constant contacts going on between the Likud and the Zionist Union toward the latter joining the coalition, and that one of the Zionist Union’s conditions for joining is that Bayit Yehudi be removed from the government.
Even though Netanyahu is far from enamored with his Bayit Yehudi colleagues, and the party’s head, Naftali Bennett, has certainly gotten on his nerves in recent months on a variety of issues, including his direct attacks on Defense Minister Moshe Ya’alon and Chief of Staff Gadi Eisenkot in connection with soldier who shot dead a wounded Palestinian terrorist in Hebron two weeks ago, he seems to prefer having Bayit Yehudi in the coalition than in opposition, where its trouble-making potential would be enormous.
Again, according to media reports, Netanyahu is apparently willing to give the Zionist Union in addition to all the ministries he is currently holding as acting minister also the Justice Ministry, should it join the coalition.
At the moment none of this seems of immediate relevance.
It isn’t at all clear whether Netanyahu is ready for a real partnership, that will force the government to the Center, if not further Left. Furthermore, the current suspicions that in the 2013 leadership primaries in the Labor Party Isaac Herzog was in breach of the election finance law certainly casts a shadow on any progress in serious negotiations.
So at least in the foreseeable future no change in the government is to be expected. Shaked will remain in the Justice Ministry and Bayit Yehudi will continue to try to shift the government further to the Right and challenge some of the democratic principles on which the state was founded.
Fortunately, Kulanu is committed to veto any attempt to weaken or neutralize the Supreme Court by changing the method by which its judges are selected, which is what Shaked and several other ministers would like to do.
A small comfort.
The writer is a political scientist and a retired Knesset employee.