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Dan Schueftan

Dan Schueftan is the head of the International Graduate Program in National Security Studies at the University of Haifa.

Democracy's saviors?

Members of our judiciary have fallen in love with their image as the guardians of liberal democracy but they have gone well beyond what is legitimate, meddling in issues that must be settled through social and political forces.

The ambitions of judges and attorneys, their undermining of the principle of separation of powers and their pursuit of political power come hand in hand with their self-image as the saviors of the people and their rights.

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While this image may have a kernel of truth because the courts do protect the individual from the state on the national level (such as in cases of religious coercion), this also has a great deal of hubris and exaggeration.

Their main motivation is not to attain power for the sake of power, but to make themselves more important than others and to steamroll anyone who happens to be in their path. Usually, they are convinced that only they can protect their homeland from a slippery slope toward the eradication of human rights and the destruction of basic principles.

The members of this order see themselves as the sentries of the walls guarding the values of liberal democracy. This is what has led to a fascinating paradox: Because of this fear of a slippery slope that would result in losing those values, they are engaged in their own uncontrollable slide down that slippery slope, from judicial review to decisions that are purely political.

In their defense, we can say that the borders between those two areas are not clear. That said, they have fallen in love with their image as saviors after crossing that border well beyond what is legitimate, and they have continued to slide down the slope despite the dangers.

This comes with a price: the alienation of a great proportion of the population who second-guesses the legitimacy of the status imposed by the jurists in a way that chips away at the overall trust in the judiciary.

One part of the population considers their rulings sacrosanct because they enjoy them. By demanding that these rulings stay beyond reproach, that segment of the population only intensifies the lack of trust among the rest.

And as a result, the judiciary finds itself in the midst of a political debate, at the heart of the polarized discourse that has characterized many democracies in recent generations.

Rather than have an institution that the people respect and accept its rulings even when they oppose their outcome, we have a public that is torn between the unrealistic expectations set by the courts' supporters and the alleged ulterior motives its detractors ascribe to it.

It is worth pointing out that the judiciary is not a radical left-wing organization, and definitely not anti-Israeli. If this were the case, then-Attorney General Aharon Barak would have not forced Yitzhak Rabin to step down over corruption allegations during his first premiership and the High Court of Justice would have not forced Rabin, during his second premiership, to fire ministers who have been indicted for corruption. Likewise, a "leftist" High Court of Justice would have not legitimized the settlement enterprise or allowed the construction of the security barrier.

The judges are deeply wedded to the notion of a liberal democracy that champions human rights, and that is why they are less inclined to listen to the will of the people. They find it hard to accept that the decision over how to reconcile human rights with democracy is through political and social forces, not judicial.

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