These words come at what I see as an important historic juncture. It is 70 years since Israel was born, 70 years since the values in the declaration of independence were articulated. It is also the 70th anniversary of the Universal Declaration of Human Rights and the Genocide Conventions, and the 80th anniversary of Kristallnacht. All of these, and the fact that we observe Holocaust Remembrance Day on Thursday, form the backdrop to this lecture on judicial independence.
It is always a privilege for us to come to Israel, to see how it has flourished and to see the way, over the years, it has been a luminous symbol of how democracy can thrive under pressure. I first came to Israel in 1965 after my first year of university. I came because I had family here, but mostly I came because I was Jewish, and wanted to see for myself how this miracle of a country had created a democratic oasis in the desert.
Over the years, I came back again and again. Israel was an emotional magnet and an inspiration. Above all, Israel was a judicial beacon. I have been a judge for 42 years, and one of the things I grew to be over the last several decades, with each visit to Israel, was a judicial ambassador for the judiciary of Israel. The Israeli judiciary's tenacious loyalty to principles of democracy and Jewish values – concepts which for me are symmetrical and symbolic, even under internal and external siege – made them heroic in the eyes of judges all over the world.
That is why Aharon Barak is so admired by lawyers and judges everywhere. Over the years, despite intense scrutiny and often gratuitous personal criticism, he chose principle over popularity and became, as a result, one of the most popular and respected judges in the world. In transcending the importuning of those who sought to bend the court to their world view, he and his colleagues brought the world's respect to the Israeli judiciary, with distinguished jurists like his successor, Dorit Beinisch, further burnishing the judiciary's international image.
As a Jew, it made me particularly proud to watch how Israeli judges became icons internationally; and so, as a Jew, it has made me particularly sad to see the judiciary's noble mission and legacy under rhetorical siege here. To me, when an independent judiciary is under siege, democracy is under siege, and when democracy is under siege, a country's soul is being held hostage.
What is most alarming to me about this ongoing attempt to delegitimise the reputation of the judiciary is that it is being done in the name of patriotism. This, to me, seems somewhat perverse. Patriotism means upholding the values on which your country is based. Those values in Israel are Jewish and democratic. They include respect for human rights, tolerance, equality and dignity. That is what being patriotic means. Yet, in championing those values, the Israeli judiciary finds itself demonised by some for being independent from political expedience and immune to political will.
Independent judges who are not politically compliant are not anti-democratic, they are doing their job. Those critics, on the other hand, who think patriotism means doing only what politicians want are the greatest threat to Israel's values, because they misconceive democracy as majoritarian rule.
Democracy is about due process; an independent bar and judiciary; protection for minorities; a free press; and rights of association, religion, expression and dissent. I think we need to emphasise that when we talk about democracy, we are not just talking about elections and majorities. To say democracy is only about elections is like saying you do not need the whole building if you have the door. Elections tell democracy it is welcome to come in, but elections are only the entrance. Without a home, democracy cannot settle down. It needs an edifice of rules, rights and respect to grow up healthy and secure.
Yet somehow, as the twentieth century ended, we started to let those who had had enough say ‘enough is enough’, allowing them to set the agenda while they accused everyone else of having an ‘agenda’. This, I would argue, is when we saw the beginning of what has grown into an unsettling global erosion of our commitment to rights, when ‘democracy’ became the rallying cry of majorities nervous about having to share their entitlements and expectations.
The essence of their message was that there was an anti-democratic, socially hazardous turbulence in the air, most notably during judicial flights. The critics made their arguments skilfully. They called the good news of an independent judiciary the bad news of judicial autocracy. They referred to minorities who sought the right to be free from discrimination as special interest groups seeking to jump the queue. They referred to efforts to reverse discrimination as ‘reverse discrimination’. They trumpeted the rights of the majority and ignored the fact that minorities are people who want rights too. They said courts should only interpret and not make law, thereby ignoring the entire history of common law. They called advocates for equality and human rights ‘biased’, and defenders of the status quo ‘impartial’. They said judges who strike down legislation are activist, unless they disagreed with the legislation. They claimed a monopoly on truth, frequently used invectives to assert it, then accused their detractors of personalising the debate.
Significantly, they wanted judges to be directly responsive to public opinion – particularly theirs – without understanding that when we speak of an independent judiciary, we are talking about a judiciary free from precisely this kind of influence. Public opinion, in its splendid indeterminacy, is not evidence and it is not law. It is a fluctuating, idiosyncratic behemoth, incapable of being cross-examined about the basis for its opinion and susceptible to wild mood swings. In framing its opinions, the public is not expected to weigh all relevant information, or to be impartial, or to be right. The same cannot be said of judges.
This does not mean judges are not accountable. They may not be accountable to public opinion, but they are most decidedly accountable to the public interest for independent decision making based on discernible principles rooted in integrity. Performing the task properly may mean controversy and criticism, but better to court controversy than to court irrelevance, and better to court criticism than to court injustice.
There is no doubt that the public's views have – and should have – a seat at the justice system's table. What they do not have – and should not have – is a veto. Judges who do their job properly in a democracy not only have the right to disregard the opinion of the majority, they have a duty to do so if it conflicts with basic legal and democratic principles.
Time, not public opinion, will always be the ultimate judge of how well judges fulfilled their duty in protecting rights. Time too will judge the governments of the day for their willingness – or unwillingness – to contribute to public respect for the judiciary's independent responsibility to patrol the borders between legislative action and the public's right to rights.
The most basic of the central concepts we need back in the conversation is that democracy is not – and never was – just about the wishes of the majority. What pumps oxygen no less forcefully through vibrant democratic veins is the protection of rights, through courts, notwithstanding the wishes of the majority.
There are those who think rights should be distributed only by legislatures, not courts, and that the enforcement of rights by courts therefore results in judicial trespass on legislative supremacy, resulting in what they see as an impairment of democratic governance. But democratic values require not only a strong legislature, but also a strong and independent judiciary so that together a mutually respectful and independent partnership on behalf of the public's right to justice is maintained.
And that is because robust rights protection does not represent heterodoxy about democracy, but rather its finest manifestation. People elect legislators who enact the laws they think the majority of their constituents want them to enact, and appoint judges who are expected to be independent from those legislators and the majority, and impartial in determining whether the legislature's actions meet the requisite standards. That is why they are judges; and if judges do not perform their job fearlessly, neither human rights nor the democracies they serve have a chance.
Now it is all being put at risk. I know there are many countries in the Western world where democratic values have been put on trial and found guilty of violating the rights of majorities, countries where they simply do not understand that majorities are only the beginning, not the end of the democratic conversation. But this is Israel. This is where a fervent commitment was made to democracy because of how a minority, the Jewish people, was treated by the majorities in Europe. Israel is where an independent judiciary was established as the guardian of everyone's rights, where discrimination in the Jewish people's past demanded a future built on mutual respect, and where equality was at the epicentre of Israel's Jewish and democratic values.
That is why I have always been so proud, as a Jew and as a judge, of what Israel stands for and has stood for, and why it is so important that what it stands and stood for is cherished, not challenged.
Democratic values, while no guarantee, are the best aspirational goals in my view, because without democracy there are no rights, without rights there is no tolerance, without tolerance there is no justice, and without justice there is no hope.
