Sunday, July 3, 2011

The Israeli Supreme Court and Democracy

A piece from 1996...

The Jerusalem Post, Wednesday, July 17, 1996
Dead-end for democracy
(July 17) -- There's something odd about the insistence that one has a fundamental right to travel down a particular street at a particular hour. Roads, after all, get closed off all the time - for repairs, for parades, for security reasons, or simply to ease traffic management.
To keep Jerusalem's Rehov Bar-Ilan open during Shabbat or close it off? That is the question, and the way the violent religious-secular conflict over it is handled could threaten the future of democracy in this country, even though the issue itself may not appear to be of such fundamental importance.
While Shabbat is a pillar of Jewish tradition, not having one's Sabbath peace disturbed by potential Sabbath violators isn't. And while freedom of movement is central to individual liberty, the individual's freedom to take the shortest route to his destination won't be found in the Universal Declaration of Human Rights or in any of Israel's basic laws.
The most important question raised by the confrontation over Rehov Bar-Ilan is: Can the people of this country and its capital really govern themselves; and can they through free and fair elections effect changes in rules - like those governing the movement of traffic - that impinge on their lives?
Jerusalem Mayor Ehud Olmert and Prime Minister Binyamin Netanyahu were both elected at the head of coalitions that promised to close off Rehov Bar-Ilan to traffic during part of Shabbat.
Precisely because partial or total closure of a single street infringes on no one's basic liberties - that is to say, it raises no fundamental constitutional issues regarding freedom of religion or freedom from religion - it is the duty of the administrative apparatus of a democratic state, and that includes the judiciary, to carry out the decisions of those whom the people have democratically elected to make these decisions.
Instead the High Court saw fit on Friday to block implementation of the partial closure of Rehov Bar-Ilan.
Apparently the justices reasoned according to the expressed view of Justice Aharon Barak, that a mere change of transportation minister - or, dare I say, of national government - does not suffice to legitimate an about-turn regarding a single street in Jerusalem.
Yet if a change of government cannot legitimately bring about the closure of Rehov Bar-Ilan, what can?
THE HIGH Court is using the machinery of the law to thwart the will of the people in a relatively small matter. But as has been clear to the friends of liberty throughout the West for centuries, it is only by exercising vigilance in small matters that we can prevent transgressions in greater ones.
By defending drivers' legitimate desire - but not their right - to drive down Rehov Bar-Ilan on Shabbat, the High Court has attacked the people's fundamental right to self-governance.
And we ought not, surely, to be astonished that such a violation of basic democratic liberties has only served to fuel the violence. The comparison may sound extreme, but by looking at a place like Algeria we can see the lives lost and economic ruin brought about when the state apparatus chooses to rule despite the people.
After more than 200 years of modern democracy, one lesson ought to be clear to those who fancy themselves the governors of the people. No amount of police violence will suffice to overturn the will of the people when the people aim to exercise their democratic rights.
If decisions, democratically arrived at, are insufficient to change state policy, then citizens have no recourse but to implement those decisions beyond the realm of law. And then it is only a question of time - and of blood - until they do implement them.
It would be both perverse and tragic if the conflict over the closure of one single street proved sufficient to push this country over from mob violence into revolutionary violence. I don't think it is sufficient.
Yet if the administrative apparatus of the state cannot realize the people's liberty of self-government in a small matter, a larger issue will soon similarly arise. And if and when it does, it will reignite the same sort of conflict, only this time with greater violence.
The state's capacity for brutal violence notwithstanding, such a conflict will eventually overturn those who seek to govern by thumbing their noses at democracy.
(The writer teaches political philosophy at Tel Aviv University.)