Jewish, or democratic? Or both? For 75 years Israel has been a Jewish democracy, but it’s a difficult tightrope to walk. Israel’s more “enlightened” citizens long feared that to become too Jewish would mean to no longer be democratic. And they believed that they alone were capable of maintaining the proper balance between the two, whatever “proper” means in this context.
That’s the explanation of none other than former Israel Supreme Court President Aharon Barak in justifying his “Constitutional Revolution” in the early 1990s.
And that term – Constitutional Revolution – that’s also Barak’s. He coined it. Which belies current slogans labeling the Netanyahu government’s judicial reform as a “revolution.” In truth, the revolution already happened, as acknowledged by Barak. Netanyahu’s government is trying to reverse that revolution and return Israel to the way it functioned prior to the 1990s.
Whether or not that’s the right thing to do can be debated. But let’s not be ignorant of history and thus present a false narrative.
Back to the notion of democracy.
The revolution that Barak enacted was based on the idea that a fully democratic Israel would eventually become too “Jewish” and thus undemocratic as the conservative religious voter base began to outnumber the liberal secular electorate.
So Barak took a preemptive undemocratic step by assuming new powers for the Court that would enable it to strike down “unreasonable” decisions by the elected Knesset.
This and other glaring faults in the Israeli judicial system were roundly criticized by top US legal scholars at the time.
Legal giant Richard Posner described Aharon Barak as an “enlightened despot,” and called his judicial power grab an act of “piracy.” In his 2003 book Coercing Virtue, former US Solicitor General Robert Bork was appalled by the authoritarianism of the Israeli Supreme Court under Barak and his successors.
“Imagine, if you can, a supreme court that has gained the power to choose its own members, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures,” wrote Bork. “Imagine a supreme court that has created a body of constitutional law despite the absence of an actual constitution.”
Incredibly, concluded Bork, “no act of imagination is required: Israel’s Supreme Court has done them all.”
[In regards to Bork’s reference to a court that selects its own members: Israel’s judicial selection committee is dominated by sitting Supreme Court justices, which means they effectively select their own successors, a stark departure from the the judicial selection process in Western democracies like the US, England and France.]
But Israel is not America, and so this criticism rolled off Aharon Barak like water off a duck’s back. Israel is very small and very fractured, and he reasoned that only a certain sector of Israeli society, which he dubbed the “enlightened public,” could be trusted to keep the nation on course.
The growing right-wing rabble could not be trusted to keep Israel progressive, liberal and “free.”
But in taking that approach, Barak in fact restricted the democratic freedoms of conservative religious Israelis and ultra-Orthodox Jews, many if not most of whom want Israel to be governed differently.
The question is this: Can Israelis, all Israelis, be entrusted with full democratic rights? Or do they (or at least some of them) require a gatekeeper, or more to the point, overriding judicial oversight?
The thing is, Israelis themselves never got to answer that question.
Aharon Barak and his “enlightened” circle decided for them.
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