Shaking the Foundations

The responses from right-wing ministers to the decision of the High Court of Justice to annul Ehud Yatom's appointment as head of the Anti-Terror Council show that Israeli democracy now faces a real danger.

The responses from right-wing ministers to the decision of the High Court of Justice to annul Ehud Yatom's appointment as head of the Anti-Terror Council show that Israeli democracy now faces a real danger. The unbridled, vitriolic manner of the attacks against the decision reached by Justices Eliyahu Mazza, Dalia Dorner and Tova Strasberg-Cohen reflects the state of mind of some cabinet members today. These public officials want to undermine the rule of law and belittle the crucial role played by the courts to uphold order and fairness in the public sphere.

National Infrastructure Minister Avigdor Lieberman declared that the High Court decision was "reminiscent of the rule of the Ayatollahs." Lieberman, who has himself been entangled with legal authorities and has been convicted of assaulting a minor, accused the judges of "coercively" imposing "radical leftism" on the public, and of "gross intervention in the political sphere, with the aim of impairing the prime minister's ability to act on the basis of the public mandate he has received."

Proving that he has no understanding of the importance of an independent judicial system, Lieberman followed the lead of other ideological ruffians, including Shas leaders, who have demanded that the High Court be stripped of its powers and replaced by a dubious alternative framework that would take the "public sentiment" into account.

None other than Knesset coalition whip MK Ze'ev Boim (Likud) declared that the High Court's decision in the Yatom case was "a painful slap in the face" and "a bleak message to all those who risk their lives on behalf of Israel's security." Similarly, MK Zevulun Orlev (National Religious Party), who chairs the Knesset Education and Culture Committee, accused the judges of partisan bias, opining that their decision was "known in advance;" while MK Yuval Steinitz (Likud), who came to the parliament from an academic position where public realities are presumably studied and contemplated with prudent detachment, announced that the High Court decision was "a disgrace to the state of Israel."

One can disagree with a court verdict, including one that is reached by the Supreme Court. It is legitimate for a person whose fate is affected by a court decision to claim that a miscarriage has been done and to vent his consternation. Ehud Yatom has the right to aspire to serve in the Knesset after having confessed to having (with others) beaten to death two captured, unarmed terrorists, and after having been involved in a testimony-tampering scheme designed to cover up his guilt. There can be little cause to doubt, especially after the Likud's true moral face displayed by the statements from MKs Boim, Steinitz and Gideon Ezra, that Yatom will find a place in the party. In contrast, the attacks against the High Court leveled by the politicians after the decision are simply unacceptable.

The principle of the division of powers, a fundamental element of any democratic system, ensures the independence of the judicial branch. Since the principle was articulated by John Stuart Mill and Montesquieu, modern democracies have learned to live with complex, mutual and structural relations between the three branches of government, and also to preserve the judicial system's ability to function as a non-partisan element. The concept of judicial independence has been part of the fabric of the state since it was founded. It has been expressed in a long list of verdicts that have reinforced and fine-tuned the fundamental view: The rule of law must be the basis of social life, and judicial independence is a necessary condition underpinning the rule of law.

There will always be tension between the judicial and executive branches. The health of democracy depends upon the preservation of the fragile balance between the three branches. When government ministers and Knesset members seek to upset this balance - by stigmatizing the court via suggestions that it is influenced by partisan political calculations, or by submitting proposals for an alternative constitutional court - they wreck the foundations upon which the state has been established.