In the increasingly fiery debate over the role of Israel’s judiciary, former Likud Prime Minister Menachem Begin seems to be everywhere. In presenting his new plan to reform the judicial system, Likud Justice Minister Yariv Levin said that he had grown up ‘on the knees’ of Begin. (Levin’s mother and grandparents were very involved in the Herut movement and the Etzel. Begin was honoured by being the sandek – the person who holds the baby – at the young Levin’s circumcision ceremony.)
‘I too believe that “there are judges in Jerusalem”’, Levin said, referring to a famous line of Begin’s after a court ruled that homes in Elon Moreh needed to be evacuated, ‘but there is also a government and a Knesset in Jerusalem [which] rest on the trust the people place in it. We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard,’ Levin argued. ‘That is not democracy’.
Begin’s memory was also invoked in the response of former Justice Minister (and former popular Likud MK) Gideon Saar. He tweeted that Levin’s words were ‘no less than a death sentence for Menachem Begin’s… doctrine’. There is no doubt, Saar wrote, ‘that Menachem Begin would have rejected each of the sections of the plan to change the regime in Israel’. Supreme Court Justice Etsher Hayut also cited Begin when he said that we are here to ‘ensure the independence of the judges, and for that we must also ensure, if possible, the independence of their members’. In a different place Begin warned against a situation in which ‘it is the government that will actually appoint our judges’. Unlike David Ben-Gurion who was opposed to a strong Supreme Court (another former Likud Justice Minister, Dan Meridor, told Fathom that he thinks Ben Gurion simply didn’t like having anyone tell him what to do), Begin advocated for a strong and independent judiciary.
In this context, Fathom is reproducing an extract from a 1951 speech by Begin to a meeting of Herut and Beitar activists in 1951. The speech was originally published in five parts in the Herut newspaper in 1951-52. English translation is from Paul Gross of the Menachem Begin Center.
The ‘Supremacy of the Law’ will be expressed by a panel of independent judges, granted the authority to decide, in the case of a complaint… whether the laws that are made by the House of Representatives [i.e. the Knesset] (which are made, as we have seen, with the considerable or decisive influence of the government) conform to the Basic Law or contradict the rights of the citizen stated in that law…
So why ‘the Supremacy of Law’? In the name of ‘democracy’ of course. Is this the democratic way, whereby five or seven or eleven people, who have not been elected by the nation, can cancel by their decision, which is called a ‘legal ruling,’ a decision that was made in the form of a law by the nation’s elected? This is a misleading question. ‘Democracy’ as represented by the person who asks this question is but a distortion of the concept of government by the people. It is possible to ask an opposing question: will this democracy of one person, or eleven or fifteen people called ‘ministers,’ deprive the nation of its elementary rights and motivate ‘their majority’ [in the Knesset] to accept ‘a law’ whereby every soldier and policeman, is allowed to arrest and jail any person that will be suspicious in his eyes, or to enter the house of a civilian and conduct a search in it or to open the citizen’s mail including his intimate family letters? Is this not a phony democracy whose real content is tyranny? Are such laws as these and others like them in essence, which instill fear in the citizenry, not likely to result in the people no longer being competent when election day comes, to choose freely between the heads of government and their opponents?
After taking a closer look at the methods of operation of a government machine, even in non-totalitarian and multi-party regimes, we have certainly learned to distinguish between the form and the content. We have learned that an elected parliamentary majority can be an instrument in the hands of a group of rulers and can act as a camouflage for their tyranny. Therefore, the nation which elects representatives must also determine its rights with regard to the House of Representatives [the Knesset], in order that the majority there – that serves the regime more than it oversees it – should not negate these rights. It is possible to achieve this only through ‘the Supremacy of Law,’ which is to say, establishing civil liberties as a ‘Basic Law’ or ‘Supreme Law’, and granting authority to a panel of judges to invalidate a law which contradicts the Basic Law by contradicting civil liberties.