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Dina Zilber, a deputy attorney general who recently criticized a government bill prompting the justice minister to call for her ouster, gave a speech at a meeting of the Knesset Education Committee that was so political that it could have easily been heard at a town square demonstration or in protests against the attorney general himself. This speech, and the controversy surrounding Zilber's remarks, once again posited Israel's two political camps one against the other. Even if that was the only damage Zilber had done, it is enough to demonstrate how such behavior by a public servant erodes the public's trust in the legal system.
Zilber publicly criticized legislation, submitted by Culture Minister Miri Regev, seeking to withhold public funding from artistic endeavors deemed disloyal to the state of Israel. With this legislation, elected officials were trying to implement the political and cultural agenda that the public elected to implement. But Zilber presented this as a negative thing, saying "governance, loyalty, override – this discourse is contrarian, wounding, scarring the collective social fabric. … Give us compliant attorneys general, give us castrated artists, give us a restrained press, give us an obedient, trained public that thinks uniformly," Zilber said.
It sounds like she prefers elected officials who obey public servants, castrated consumers of culture, an unrestrained (one-sided), possibly irresponsible media and, apparently, an "obedient, trained public that thinks uniformly" according to the dictates of the attorney general and his cohorts.
Her defenders apparently believe that their views and values are absolute (or at least the ones that count). That's why there is nothing wrong with her speech – she was simply voicing the sentiments that we should all believe. According to Zilber's defenders, any criticism of her actions is designed to "alter the values of this state … to restrict the only mechanism that powerfully defends freedom and equality," as ex-minister Dan Meridor said.
And I ask: Why are attorneys general more important in defending freedom and equality? Why do we assume that they are more committed to these values than the elected officials that the public democratically elected precisely to defend those very same values? Who can guarantee that the courts aren't destroying democracy? It is a distorted assumption that has taken root, that the moment a citizen dons court dress he becomes an infallible angel guarding our freedom and equality from the evildoers constantly trying to snatch them away.
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I have very little hope that this column will result in dialogue. If each side earnestly believes that the other side wants to "destroy the state" then what good will rational arguments do? My words will remain a sobering monologue.
So, who decides which values are worthy? We have grown accustomed to the assertion that "democracy is in danger" amid a never-ending debate over what democracy even means. Similarly, we've grown accustomed to hearing the word "equality" spoken as though the meaning of the word is obvious. What about freedom? Does freedom have just one, singular meaning?
Zilber's incredible speech was part of a debate on the so-called loyalty bill. I have written many times about my opposition to such legislation. Government intervention and regulation has never been effective in the realms of culture, academia and media. It is impossible to fix a closed institution, which isn't dependent on the democratic process, and force it to be open. The solution lies in education and in the establishment of alternative institutions. Like in economic liberalism, culture, academia and the media need to simply allow the free market to steer the people toward changing the channel, consuming culture in a more varied fashion and studying in institutions where the lecturers are diverse and the opinions are truly free. This is a process that can take many long years, but it is possible and it can work.
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It is interesting that Zilber defended her opposition to the bill by saying that "this is a law that grants sweeping powers … by way of vague definitions that leave a lot of room for interpretation."
Her description reminded me of a different law – one that is far more important and influential: "Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel." And there's more: "The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state."
This law, legislated in the middle of the night and passed with a razor-thin majority, gave rise to a judicial revolution, led by former Chief Justice Aharon Barak. The revolution was possible precisely thanks to the "vague definitions" included in this basic law that left plenty of "room for interpretation." But when these vague definitions conveniently serve the Left, there are no Dina Zilbers to issue warnings on the "changing face of our state."
So what exactly is the "value of the human being"? What is the "sanctity of human life"? What exactly does it mean that "all persons are free"? And what is the "spirit of the principles set forth in the Declaration of the Establishment of the State of Israel"? What is dignity, anyway? And what is human dignity specifically? These words can be interpreted in wildly different ways. Aharon Barak would interpret them in line with his worldview, his beliefs and his values. Others would interpret them entirely differently. Who decides what a "Jewish state" is and what a "democratic state" is? After all, there are many schools of thought.
Over the last 25 years, Aharon Barak's school of thought decided for us that a Jewish state is merely declarative. It is Jewish in name only, not in its essence. But the democracy has been turned into a be-all and end-all – not a framework that allows the people (demos) to decide their own reality through majority rule in the voting booth and in the Knesset, but rather a democracy that has predetermined certain values. These values were dictated by a small groups of jurists that have put themselves on a pedestal, above the public. They decided that they know better than we do what the values of the state of Israel should be.
The word "dignity" for example can be interpreted as almost anything. An IDF security protocol meant to protect our soldiers' lives could be interpreted as a violation of Palestinian "human dignity," but it could also be deemed as upholding Israeli "human dignity." Our sages taught us that "your lives and the lives of your friends – your life comes first". This rule is more pragmatic when it comes down to our life or the enemy's life. So who decides?
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Where does the boundary run, asked Yedidia Stern of the Israel Democracy Institute, who supported Zilber. "Is the legal counsel provided by the attorney general an attorney-client framework? Or does the attorney general have two jobs – not just an adviser to the government but also a representative of the public who is responsible for maintaining the rule of law for all of us?" With this very remark, Stern highlighted the scope of Aharon Barak's opportunism. Barak and his followers acted precisely the way Stern described – as though they were the only representatives of the entire public and exclusively responsible for upholding the rule of law for all of us, only they didn't uphold the letter of the law or the spirit of the legislator, they upheld the way they interpreted the purpose of the law, in accordance with their worldview and their value system.
In any case, Dina Zilber-style politicization doesn't demonstrate this group's loyalty to the public. It only demonstrates the specific values held by her and her ilk. The true representatives of the public are the representatives that the public elected – the members of Knesset that legislated the state's laws and decided what the purpose of these laws would be.
The thought that judges or attorneys general have some higher understanding of the law than the legislators who legislated them is not the way to defend freedom or equality. Taking the power to decide what our values should be, without permission or authority, is not the way to defend freedom or equality. On the contrary – it is the way to strip us, the citizens, of our freedom to shape our own lives and our own fates. It is precisely the opposite of equality to create this false hierarchy where the judges, not the representatives elected by the public, are at the top.
These judges and legal advisers represent only the judicial branch. But by forcing the hand of the political echelon they are also acting as the legislative branch, by way of legal interpretation. They have turned judges into Plato's philosopher king and imposed their rule over us. We must fight for our freedom.
