Judges are not God
Op-ed: There is no historical proof that judges protect human rights more than politicians do. The ‘notwithstanding clause’ is an essential need, which does not harm the rule of law or democracy. On the contrary, it’s an opportunity to reach a much more decent and democratic arrangement concerning asylum seekers.
Well, Sweden decided to deport a 106-year-old asylum seeker to Afghanistan, which is a much more dangerous country than Eritrea, Rwanda and Uganda, jointly and separately. Many others have been forcibly returned to the same country.
In general, the threatening phrase “forced return” is mostly a deception, because all returns to these countries are voluntary rather than forced, and all Western states return people forcibly. But it’s only in Israel that judicial activism has reached terrifying levels that are disrupting government procedures and harming democracy. Not in Sweden, in Israel. And at the end of the day, the propaganda of lies is turning Sweden into the appropriate model and Israel into a villain.
The main argument justifying the High Court’s intervention in government decisions and its rejection of laws is that “the judge overrides the politician,” as rule of law isn’t just majority rule. Rule of law, we are told repeatedly, and rightfully so, is also the rule of basic rights. And who will protect us from the tyranny of the majority? The judges. Only the judges.
But this theory clashes with reality. There is no historical proof that judges protect human rights more than politicians do. Aharon Barak, the great priest of judicial activism and of harming democracy for the sake of the rule of judicial oligarchy, went all the way back to Germany of the Weimar Republic, and then to Nazi Germany, to justify the activism. In an interview to Yedioth Ahronoth in 2015, Barak argued that “in Germany in the 1930s, the court was unable to strike down laws… I truly believe that if Germany had a strong court and judicial review at the time, Hitler could have been prevented.”
That isn’t true. Germany’s supreme court took the liberty to strike down laws in as early as 1925. Did that save democracy? Absolutely not. One of the greatest judges of all times in the United States, Learned Hand, said: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
There is no need to mention that Hand strongly opposed activism. Here, he would have likely been portrayed as an unenlightened person, because that’s the system—whoever is against a reinforcement of the oligarchy is immediately turned into an enemy of democracy.
Which takes us back to the “notwithstanding clause” issue. It already exists, for example, in the Canadian constitution, and there is no need for a special majority to override the constitution’s orders or to revalidate laws that have been struck down by the supreme court.
Barak himself has made it clear in the past that “the Knesset, knowing that a law it is very interested in enacting violates a constitutional right, can enact such a law with a two-third majority and for a limited period of time. In other words, the law will be temporary. I am very much in favor of that.”
In fact, that’s exactly what happened in the Mitral affair. The Knesset banned non-kosher meat imports. The High Court ruled that the law violates Basic Law: Freedom of Occupation (while blatantly ignoring a basic law which states that Israel is a “Jewish and democratic” state) and accepted the petition. The Knesset added the notwithstanding clause to Basic Law: Freedom of Occupation, and the High Court—following another petition—acknowledged the Knesset’s authority and dismissed the petition.
But now, unbelievably, the oligarchy’s supporters are arguing that the notwithstanding clause is a threat to democracy. How exactly? Is Canada less democratic than Israel? Wasn’t the change in Basic Law: Freedom of Occupation democratic? After all, a complete rejection of the notwithstanding clause not only contradicts common sense and legal precedents, both in Canada and in Israel, but it also gives the High Court a sort of divine and supreme status.
We can dissolve the Knesset and put the judges in charge. After all, they have already annexed the authority to grant citizenship to Hamas supporters in Jerusalem, to issue orders on the supply of electricity to Gaza, etc. This is what former US President Abraham Lincoln was referring to when he said that “if the policy of the government is to be irrevocably fixed by decisions of the Supreme Court, it is plain that the people will have ceased to be their own rulers.”
There is no need to like the right-wing government or the Likud party to realize that sometimes, just sometimes, the Right is right. The notwithstanding clause is an essential need, and not in order to harm the rule of law or democracy. On the contrary, it’s an opportunity to reach a much more decent and democratic arrangement in terms of the different authorities’ powers.
