A real Democracy has checks and balances

Democracy has been on my mind a lot lately with the current Israeli government’s moves to “reform” our Judiciary, and essentially cripple it in the process. The consequences of this for our democracy will be devastating.

The government’s argument is that their proposed “Judicial Reform” legislation will strengthen democracy by shifting power almost exclusively to elected officials. This is a simplistic, and deeply flawed perspective on democracy.

I’m watching an episode of The Problem with Jon Stewart in which Stewart is discussing democracy with Anne Applebaum, along with a global trend towards autocracy. Applebaum nicely outlines the core elements of an effective democracy in this chapter:

My son’s class has been discussing the current “Judicial Reform” program, and he asked me for some notes to help him understand this better. Here are some of my notes on this, with a particular focus on Israel:

Israel lacks a written Constitution. Instead, Israel is guided by the Declaration of Independence that sets out the principles that are meant to guide us. The Israel Supreme Court has ruled that the Declaration of Independence is not a binding law, so this is not a constraint on laws and Executive action like the US Constitution is in the United States.

We have Basic Laws that are superficially similar to a Constitution although with the exception of two Basic Laws (Human Dignity and Liberty, and Freedom of Occupation), they can be amended by a simple majority in the Knesset, namely 61 votes.

Currently the check on the power of the government to make changes to the Basic Laws that violate human rights and otherwise go too far is the Supreme Court’s (also referred to as the High Court when it considers laws like this) reasonableness test that is essentially determining whether the change to the law (or the new law) goes further than is necessary or is in some way unreasonable.

Remember that Israel doesn’t have a Bill of Rights that limits what the government and the Knesset can do so tests like the reasonableness test are important for there to be a check on the power of the government. Without this test, the government can pass laws that are unreasonable, and go further than necessary to achieve a given outcome.

The result is a state known as the tyranny of the majority. According to Tyranny of the majority – Wikipedia –

The tyranny of the majority (or tyranny of the masses) is an inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions. This results in oppression of minority groups comparable to that of a tyrant or despot, argued John Stuart Mill in his 1859 book On Liberty.[1]

This is unrestrained majority rule and an overly simplified understanding of a democracy. A democracy is not just the power of the majority to make laws, set policy, and govern. At least not a liberal democracy that respects its citizens liberties and human rights. A liberal democracy depends on a strong and independent judiciary that can prevent the majority from unreasonably harming the interests of minorities.

The proposed Judicial Reforms will weaken the High Court to the point where the court is unable to act as a check on the government’s power, and to protect minorities in Israeli society. This is due to a combination of a few goals of the proposed reform:

• Change how judges are appointed by giving the government a majority vote instead of the current Judicial Selection Committee that requires various stakeholders to agree on an appointment of a judge;
• Require a large majority of judges on the High Court (or all of them) to agree to overrule a law of the Knesset, and then still enable the Knesset to override the High Court with a simple majority of 61 votes;
• Block the High Court from reviewing Basic Laws that the government passes; and
• Block the High Court from using a test of reasonableness when reviewing any other laws.

The result will be almost complete authority being granted to the government to pass any law it wants to pass without an option to challenge it effectively. At this stage, the only recourse that Israelis will have is to vote in a new government and hope that the new government doesn’t take advantage of this power for its own purposes.

There is an important quote by John Dalberg-Acton in 1887:

Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority.

Needless to say, Israeli democracy is very much under threat, and I am very worried that we are sliding towards a form of autocracy with a severely weakened, and nominal democracy.