T. Belman. Shoval failed to address a bone of contention. Yes. the Court can over turn laws which conflict with our Constitution (Basic Laws). This is the same in western democracies. What is different in Israel is the ability of the Court to interpret basic laws which are not explicit. In Many countries, the law is returned to the Parliament to make it more explicit. Or at least the principles of interpretation require the Court to look at the intention of the Government. In Israel, the Court takes it upon itself.
For instance, in the Basic Law: Human Dignity and Liberty, there is no definition of “human dignity”. This is very problematic as the Court has taken upon itself to interpret the words and by virtue of their interpretation have overruled many a law passed by the Knesset.
It seems that not a day goes by without an opinion piece being published accusing the Israeli government, and the state in general, of being undemocratic. Every political or legal step involving Judaism, Zionism or patriotism earns this label.
Supreme Court Justice Yoram Danziger championed freedom of speech as a central test for democracy. Indeed, a single glance at a newspaper these days is proof enough that in Israel this freedom is upheld to the extreme. There are additional principles: majority rule, minority rights, rule of law, freedom of employment and the right to property. These principles come with restraints, such as how to ensure that freedom of expression does not result in “grave harm to the public’s wellbeing and safety,” as former Chief Justice Aharon Barak once said, or how to prevent the election process from distorting the true will of the people. And perhaps most importantly, how to prevent a protected minority from taking advantage of its status to extort the majority.
Despite those who vilify it, Israel is certainly not a weak democracy. The yearly democracy index by British weekly The Economist puts us in the same class as the U.S., France, Belgium, Japan and Portugal. More importantly, Israel’s rating goes up from year to year. It is also worth noting that despite the security challenges Israel has faced since the day it was established, it has managed to religiously preserve the principles of democracy.
Some claim that Israeli democracy is defective because of the “occupation.” But this is a political matter, a reality created by Israel’s self-defense in the face of Jordanian-Palestinian aggression during the 1967 Six-Day War. Unless Israel annexes the territories, they should not be held to the rules and laws that apply to the state, as they are indeed occupied territory. As Professor Ruth Gavison wrote in a Haaretz opinion piece, “From the perspective of international law, the Palestinians have no ‘right’ to end the occupation, and Israel is not obligated to end it.”
There are also those who decry Israel’s characterization as a “Jewish and democratic” state. But there is no contradiction between being Jewish and being democratic. On the contrary, the roots of democracy can be found deep within Jewish tradition, as Catholic author Thomas Cahill wrote in “The Gifts of the Jews”: “Democracy grows directly out of the Israelite vision of individuals, subjects of value because they are images of God, each with a unique and personal destiny. There is no way that it could ever have been ‘self-evident that all men are created equal’ without the intervention of the Jews.”
Let us not ignore the weak points and warning signs in Israeli democracy: legislation aiming to weaken the Supreme Court’s authority to restrict or strike down laws that are deemed unconstitutional, for example, or public demonstrations against the attorney general, can harm representatives of democracy and undermine the rule of law.
Another threat to democracy is the populism, both rightist and leftist, that has spread in Israel. The extreme Right and the socialists are, by definition, anti-democratic because they reject the individuality of man. They both wave false flags — one of alleged patriotism and the other of false social classes.
And of course one of the worst dangers threatening democracy is the intolerance displayed by political rivals toward one another while pretending to champion freedom of expression and democracy. Calling Education Minister Naftali Bennett the popular but unforgivable epithet “Nazi,” or distributing images of the late Prime Minister Yitzhak Rabin or current Prime Minister Benjamin Netanyahu in SS uniforms – these things are not protected under freedom of expression and should not exist in a democracy.