61 Cats Guarding the Cream

The optimistic hope that the majority will not take advantage of its power to perpetuate its rule is akin to leaving the cream to be guarded by 61 cats. The temptation is just too strong.

Many loaded guns are lying on the political table today: an override clause; curtailment of the High Court’s power of administrative review of government actions; a change in the mechanism for selecting judges; and a downgrade of the attorney general’s status. Even if only some of these steps are actually taken, Israel will be left without any effective checks and balances on the political majority, and the coalition will have absolute power.

Some argue that such moves would actually strengthen “democracy” by enhancing the majority’s capacity to govern. However, this idea is based, on a distorted notion of democracy, which sees majority rule as its sole component, with no protection of minorities, no checks and balances, no separation of powers, and even without the rule of law and an independent judiciary. This is a very hollow concept of democracy, reduced to nothing more than a procedure: elections, after which the majority is free to do as it pleases, and any obstacle in its path is “anti-democratic.” In effect, this idea does not prevail in any democracy today: all of them make use of various checks and balances on the majority’s power — most of which do not exist in Israel (such as an upper house of parliament, an entrenched constitution, acceptance of the authority of international courts, regional elections, a president who can veto legislation, and so on).

But even if we accept the view that majority rule is the be-all and end-all of democracy, the claim is not persuasive. There is no real distinction between substantive democracy and procedural democracy, since absolute power is precisely that: absolute. There is no reason to assume that it would be wielded only to execute policies that might infringe on rights such as freedom of religion, equality, or liberty. It could also be utilized to undermine the democratic process itself and guarantee that the current majority remains in power (such as by amending election laws). This is not a matter of theory; this is what has actually happened in Hungary and Poland.

We must remember that elections are only the culmination of a long process aimed at determining what the majority wants. For elections to truly reflect majority opinion, there must be freedom of expression, so that people can be exposed to different opinions, and decide which they prefer. But if certain ideas are stifled, whether among individuals or in the mass media, academia, or the schools — how will we be able to speak about a genuine “majority decision?” How can people be persuaded in one direction or another if freedom of protest or freedom to establish an NGO, is restricted, or if limits are imposed on launching a political party or a new publication? In Israel, the Knesset has consistently demonstrated that it has no intention of keeping its hands off the electoral process. For example, many bills have been submitted to block the High Court from reviewing the disqualification of party lists. Even freedom of expression is at risk: dozens of bills have been filed that would bar criticism of the authorities, in one way or another. It is most likely that laws of this nature would be struck down by the Supreme Court. But in the era of an override clause, all such court rulings would only have the status of a recommendation which the parliamentary majority could override with a simple majority, leaving the road open for it to stifle opinions and manipulate election laws in order to benefit the party in power.

What this means is that an override clause and all the associated reforms geared to blocking any restraint on those in power is not only a threat to substantive democracy, but also to democracy- by any definition. Without the rule of law, without an institution that protects freedom of expression and prevents abusive changes to the basic rules, there is a clear and present danger. The optimistic hope that the majority would not take advantage of its power to perpetuate its rule is akin to leaving the cream to be guarded by 61 cats. The temptation is just too strong.

The article was published in the Times of Israel.