Judges Heckled Rothman’s Arguments?
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| MK Rothman before the Supreme Court |
Prof. Haim Hanani, Vice President of the Technion in the early 1960s, initiated an experiment. He posed a challenge to his students, “What information do you need to design a pipeline that will transport blood from Haifa to Eilat?”
The diligent and talented students flooded him with questions: What is the length of the proposed pipeline? What is the topography? What is the viscosity of the blood and what is its chemical composition? Is the blood to be transported rich in oxygen or carbon dioxide? What is the anticipated flow velocity and pressure inside the pipe? More and more questions were raised that were immediately added to the drafting pages and the calculation graphs.
When the students finished their work and submitted their papers, Hanani informed them that they had all failed the test. He explained, “I did not seek to test your ability to plan a blood pipeline. This was a test of your moral sensitivity. None of you asked why a pipeline is needed to transfer blood from Haifa to Eilat. Not one of you considered whose blood this is and who spilled it.”
Following that experiment, a Department of Humanities was established at the Technion. The story of Professor Hanani’s experiment appears on the department’s website, as well as his concern about the reality in our country, which he described as “shoemakers contending with nuclear science” because students lack sensitivity and training in humanist and political thought (he described them as “walking slide-rules”).
The petitioners in the matter before this Court, and to our profound regret The State’s Attorney as well, have presented a veritable smorgasbord of legal techniques to the Honorable Justices – drawn from Bangladesh to Uganda to Pakistan – to invalidate the amendment of Israel’s Basic Law: The Judiciary. They bombard this Court with strange and unusual questions: Can the amendment be disqualified on the unconstitutional grounds of the Constitutionality Doctrine, based on the principle of misuse of Basic Laws, or perhaps based on the more general principles found in Jewish law that served as the basis for the decision regarding taxation of third apartments.
But the very fact that these questions have been raised and are being considered is a failure; it is how the system is failing the test. To a certain extent, even the brief response I have submitted that considers the question of judicial purview is already a failure of the test.
These questions are akin to those raised by Hanani’s students; they consider how to design the tube in which the blood flows without asking why such a tube is necessary.
One of Judaism’s fundamental principles is that it is forbidden to consume blood: “The blood is the soul.” In the analogy I have presented today, the blood is essence, the soul of Israeli democracy: The Israeli citizen’s right to vote.
What purpose would be served by legal procedure or a judicial process that harms the soul and essence of democracy?
Looking beyond all of the arguments, the clever ones as well as the patently ridiculous ones, what justification can there be for taking from the State of Israel its most basic characteristic as a democratic state – free elections, the ability of the public to express its opinion, the ability of the public to change the laws by which personal and national life is conducted, the ability of the public to determine the arrangements according to which the government of the people, by the people, for the people, operates?
Over many years, in a gradual process of clever legal maneuvers, Israel’s Supreme Court assumed powers that are unparalleled in any democracy in the world. When this process began, Chief Justice Moshe Landau warned against these steps:
“It is an essential condition for the proper operation of the courts in a country like the State of Israel that the court refrains from engaging in matters of policy, choosing between worldviews in issues that involve social, economic, and political questions that are matters of public controversy when the Knesset has stated its opinion on an issue and expressed its will by way of legislation. Any annulment of legislation by a court in matters such as these will make the court a senior partner in the work of legislation and make the judges the bane of public dispute when one segment of the public applauds them and another rejects their ruling as one-sided and fundamentally wrong. In this way, the court will not only come into conflict with the majority in the Knesset, but it will lose the trust of the general public, which is an inviolable condition for the court’s status in the eyes of the public. This posits what I believe is a fundamental understanding, that the constitutional regime accepted by all of us is a parliamentary democracy in which the people, through their elected representatives, express their will as the final arbiter of matters in politics. If the elected parliament does not fulfill its role properly, no remedy will be found in the control of an oligarchic regime by a group of people, no matter how wise and prudent and honest they may be – that they will be authorized to overrule decisions of the public’s representatives in matters of legislation, without having to periodically face the judgment of the public in elections. I have described this as a quest for a miracle cure for the ills of the existing system, a crossing of a red line by the court, and a disservice to them.”
Today, Justice Landau’s prophecy has come to fruition. Public trust in the court is waning as a result of the court’s extensive involvement in social, economic, and political matters.
But public trust in democracy remains.
Over the last three years, the people of Israel went to the polls again and again, seeking a decisive result, a stable government. Again and again, the public turned out en masse to vote, in unexpected and impressive numbers, with a rate of participation among the highest of any democratic country.
Five times we went to the polling stations because the Israeli public believes in democracy. We believe in free elections. We believe in freedom of speech. We believe in the ability to strive for broad agreement on all issues – and broad agreement to correct the judicial system is what we need most of all. The path to achieving this goal is not an easy one. It will certainly be made even longer and more arduous if this Court decides that this matter is in its hands.
Do not be tempted to become senior partners in the crafting of legislation. Do not be tempted by the applause you will receive from one segment of the public while the other rejects your ruling as one-sided and biased. Reaching the light at the end of the tunnel, extrication from the constitutional crisis that has been building up for years will only be pushed further out of reach.
Clearly, we in the Knesset are not infallible. In truth, the Knesset suffers from a host of problems, as Justice Landau noted. Knesset debates are unruly and off-putting, and Members of Knesset are “unprofessional,” driven by the need to make deals and reach agreements – but democracy is the best, or perhaps the least bad, method that mankind has come up with to solve the problems of joint decision-making by a large number of people. It is messy and often unesthetic, but it is the best way we have to promote and protect individual rights, equality, and freedom of expression.
Oligarchical elites excel at protecting the rights of the elite few but are far less effective at protecting the rights of others, yet the royal house or courthouse will always look more beautiful, dignified, and orderly than any parliamentary floor. That is democracy. It is a reflection of life itself. Unlike the court that hands down its decision from the throne of judgment and leaves the implementation and the repercussions to be dealt with by others, the elected officials in the Knesset and the government bear public and parliamentary responsibility. If they appoint an unsuitable person for a job, they are the ones who will suffer from his underperformance. If they make a bad decision, they will soon be the ones to face the public and explain why they have been forced to reverse their own decision. This is true of judicial reform, as it is regarding other issues that are the heart and soul of political debate.
The plaintiffs are asking you to plan a pipeline that will drain the lifeblood of Israel’s democracy.
I demand that you ask why. Don’t be “shoemakers contending with nuclear science.”
The plaintiffs are seeking a judgment and I, in the name of the majority of the nation that elected this government, am seeking justice.
This past Shabbat we read the words of the prophet, “For the sake of Zion I will not be silent, and for the sake of Jerusalem I will not rest until justice shines forth and its salvation burns like a flaming torch.”
This nation has been crying out for justice for years. Do not make the nation and the government wait any longer.
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