A dark and lengthening shadow is being cast over the democratic camp: politicians, with or without parties, are calling for the repudiation of the rule of law, and are thereby proposing, explicitly or implicitly, a withdrawal from the liberal definition of the relations between state and citizen. This definition – always flawed, always capable of improvement – lies at the heart of the Western aspiration to freedom. It has guided the ideological and political revolutions of the past 250 years. It inspired American independence, the principles of the French revolution (as well, alas, as some of its perversions), the gradual broadening of the right to vote, equal rights for women, emancipation of the Jews, the abolition of slavery, the dismantling of the colonial empires. It has brought freedom of speech and freedom of assembly.
Its concern has always been limitation of the power of government and ensuring due process of law. In fact, "process" is the most important term in defining the workings of democracy. A democratic constitution does not define ends. It is not concerned with stating a destination (constitutions that do do that are not democratic, or at least not liberal). It is only concerned with means.
The totalitarian distortion of the twentieth century was an attempt to put the ends before the means - a long way before. In the name of the ends, fundamental rights could be negated. The "what" took precedence over the "how".
The retreat from the rule of law takes many forms. In totalitarian regimes, the new system of laws is given an ideological title. Sometimes a time bomb is planted within it: the automatic right is given to law enforcers to circumvent it in the name of a higher principle, such as a national and religious legacy, which is the sanctified opposite of universal norms.
Israel's minister of justice is now trying to plant just such a time bomb. Ayelet Shaked declared in the Knesset on August 29, "Zionism must not continue, and I say here: will not continue, to bow its head before a system of individual rights expressed in universal terms."
This declaration may one day mark the watershed beyond which Israel will be deprived of its democratic preeminence in its region. This will not be because there will be additional democracies, and not because Israel will be less democratic than its neighbors; it will be because the democratic foundation of a state is not a relative function. It is a reflection of the absolute criteria of the state's system of justice.
Ministers of justice in democratic countries are usually the watchdogs of the rule of law, and defend it against the appetites of politicians. The very right-wing attorney general (the US equivalent of justice minister) in the administration of George W. Bush was once asked on his sickbed to approve a surveillance program and refused point blank, thereby preserving the rule of law.
Ayelet Shaked is not a watchdog. On the contrary, she has taken on herself the task of destroying the foundations. She is an ideologist of a "principle" that is designed to subordinate the universal criteria of the rule of law to the authority of a set of values that is retrograde, undemocratic, and illiberal. In her declaration in the Knesset she made a historic contribution to the global effort to delegitimize Zionism and the State of Israel. The danger in her continuing in office is clear and certain.
Shaked is not alone
Ms. Shaked is not the only minister in the camp of democratic countries busy with redefining the rule of law to the detriment of liberal democracy. Battles over the rule of law are currently raging in several countries that are in the twilight zone between liberal democracy and authoritarianism. For example, last week, we were witness to the rare, not to say amazing, sight of the actual supremacy of the Supreme Court in Kenya. Probably for the first time in the history of independent Africa, the court voided general elections that gave the sitting president a huge victory. The elections were riddled with such extreme irregularities that their results could not be considered legitimate, four of the six justices ruled.
The president gritted his teeth. "Six people cancel the will of millions," he said, and uttered threats against the court – but accepted its decision. In another two months there will be repeat elections. After that, the president will surely try to put an end to the supremacy of the rule of law. Similar conflicts between willful leaders and the rule of law are taking place in the Philippines, in Poland, in Hungary, and in the US.
The worldwide threat to liberal democracy is not a coincidence. This brand of democracy has never been an easy sell anywhere. Uprisings against it have taken place regularly almost since it first appeared towards the end of the eighteenth century. Such uprisings only rarely end by themselves, and then only in societies with very deep democratic roots.
Will Shaked one day hear a member of Knesset echo the challenge directed at Senator Joe McCarthy in 1954: "At long last, have you left no sense of decency?"
Published by Globes [online], Israel business news - www.globes-online.com - on September 10, 2017
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