The public debate about the judicial overhaul focuses on six main points: The change in the method of selecting judges; the stipulation that a special majority of the panel would be required for the Supreme Court to strike down a law on the grounds that it contradicts a Basic Law (80%, in Levin’s version; unanimous, in Rothman’s version); the override clause; the abolition of the grounds of unreasonability; the entrenchment of the Basic Laws; and the politicization of the ministries’ legal advisers (for now, this last proposed change has been postponed to a later date).
There is one point, however, that is not receiving sufficient attention in the public debate but must be addressed vigorously: In both Levin’s and Rothman’s versions, judicial review could nullify a law only if it was found to be incompatible with an explicit provision of a Basic Law.
This is a critical matter, since the Basic Law: Human Dignity and Freedom, which is our substitute for a bill of rights, specifies only some of the rights customary in democracies and not all of them. This lacuna includes several extremely important rights, such as equality, freedom of expression, freedom of religion, freedom from religion and a decent minimum standard of living.
These rights do enjoy constitutional protection but only because the court has interpreted them as included in the right to human dignity promised by the Basic Law. The Levin-Rothman proposal would rob Israeli citizens of this constitutional protection by insisting on an explicit provision of a Basic Law as grounds for striking down a regular law. In this situation, the most important and fundamental democratic rights would no longer enjoy constitutional protection.
Freedom of expression is considered to be an overarching right in a democracy; without it one cannot even begin to speak about the principle on which this entire remake of the system is based: majority rule. For how can one determine what the majority wants if there is no protection of multiple opinions and fair competition among them?
If people cannot persuade others, establish a nonprofit or political party, write freely in the media and investigate corruption, you cannot really claim that the majority has spoken, even when there are elections.
THE SAME applies to the right to equality, which is generally viewed as the very essence of democracy and the source of the principle of majority rule. Where does “one person one vote” come from, if all individuals are not equal?
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We must not forget that with regard to equality, Israel has been in an extremely delicate position even before these proposals were raised because it is a Jewish and democratic state. Then, several years ago, the Basic Law: Israel the Nation-State of the Jewish People was enacted.
Many ardent Zionists who were not against the law were nevertheless troubled by its omission of a clear statement that Israel guarantees equal rights to all its citizens. The repeated response of the law’s sponsors was that “the Nation-State Law is not the place to protect equality, which is already protected by the Basic Law: Human Dignity and Freedom.” Beyond the fact that this statement was inaccurate because this protection derives only from the court’s interpretation of human dignity, now the very same camp is proposing to nullify this interpretation and with it the constitutional protection of equality.
Throughout the world, the response to the Nation-State Law was to denounce Israel as an apartheid state. Jurists in Israel and abroad rightly defended the country on the grounds that even after the law’s enactment we still enjoy the constitutional protection of the Basic Law: Human Dignity and Freedom, as well as a strong and independent Supreme Court that would never permit discrimination on the basis of a citizen’s national identity.
How can we continue to make this claim? How can we continue to respond to the anti-Zionist argument that a Jewish state cannot be democratic, as well, if the equal rights of minorities guaranteed in the Declaration of Independence are no longer protected, even if only thanks to a judicial interpretation and a strong court?
It follows that the current battle against the judicial overhaul is not being waged only to safeguard democracy, it is also a fight to preserve Zionism itself. It is a fight to maintain the justification for Israel’s existence as viewed in the eyes of the world and in our own eyes as a state that is not only Jewish but also democratic. This is why the demonstrators’ use of flags and their reference to the Declaration of Independence is precisely on target: This is not a campaign on behalf of the values of a particular camp but rather a war waged on the very character of our country as a Jewish and democratic state – a struggle on behalf of Zionism itself.
The writer is a senior researcher at the Israel Democracy Institute.