Tuesday, May 22, 2012

Kirshenbaum - Bad precedent: The Supreme Court and Beit El

David Kirshenbaum..
Op-Ed Contributor/JPost..
21 May '12..

The ruling by the High Court of Justice ordering the government to destroy homes in Bet El highlights once again the abusive and outsized power seized by the Supreme Court at the expense of the country’s elected representatives.

It also demonstrates how dangerously successful former justice Aharon Barak’s one-man “Constitutional Revolution,” that began in the 1990s, has been.

While the ramifications of the court’s ruling in the Bet El case were quickly overshadowed by news of the unity government, there is a strong connection between the two items. One of the expressed purposes of the agreement between Prime Minister Binyamin Netanyahu and Kadima chairman Shaul Mofaz is to change Israel’s system of government and create a more stable democracy.

It is incumbent that that process also restore the proper balance of power between the government, the Knesset and the Supreme Court.

That balance was fundamentally altered by Aharon Barak, who persuaded a generation of Israelis that Israel not only has a constitution, but that it also grants the Supreme Court the power to strike down Knesset legislation in all facets of life. The chorus of approval in academia to Barak’s pronouncements brings to mind the accolades heaped on the emperor’s wardrobe in The Emperor’s New Clothes.

How does a constitution obtain legitimacy? The United States Constitution was drafted during a three-month process by representatives of 12 of the 13 then extant states. Following its completion, it was sent to the US Congress for review and to the 13 state legislatures for approval. Pursuant to the terms of the draft constitution, the document would not become binding until it was ratified by nine of the 13 states.

The debate process took place all across America, in outdoor and town hall meetings, newspapers and state legislatures.

Only after nine months of a great national debate was the constitution ratified.

Similarly, Australia’s 1901 Constitution was drafted over the course of a year and it took two years until ratified by the required representatives of Australia’s colonies.

More recently, when members of the European Union wanted to establish a European Constitution, they spent two and a half years in discussions and negotiations until agreement on its provisions was reached. The text was unanimously approved by representatives of all member states, with most signers being heads of state.

Nevertheless, a constitution’s legitimacy is best conferred by those who will be bound by its terms. Thus, approval was required by each member state, whether through its legislature or via national referendum.

Ultimately, the terms were not approved.

And what of Israel? Two laws said to form the basis of Israel’s “constitution” are “Basic Law: Human Dignity and Liberty” and “Basic Law: Freedom of Occupation.” They were passed on the last day of the 12th Knesset with the affirmative votes of 32 and 23 Knesset members, respectively, out of a 120 member total. Does the one-time vote of 27 percent and 19% of a legislature make a constitution, let alone a legitimate one?

NEVERTHELESS, JUSTICE Barak used his self-created constitution to set in place a system that, time and again, substituted the judgment of the unelected judiciary, whom Barak has suggested are the “enlightened members of society,” for that of the elected branches of government.

The High Court’s response to petitions brought by left-wing NGOs against Jewish communities in Judea and Samaria is a case in point. All these communities were built on land that was barren and uncultivated prior to the Six Day War. Assertion of conflicting prior ownerships was brought forth by the NGOs only after Jews started moving into the area.

Any actual ownership interest, proof of which was never presented, would have arisen from the transfer or outright grant of the property by a monarch, King Hussein of Jordan, whose sovereignty over the area was never recognized by Israel or by 99% of the other members of the UN.

While in the absence of formal annexation by Israel of Judea and Samaria, there is a murky question as to what law would apply to the area, it is commonly accepted that recognition of a foreign law to a dispute in the courts of a home country is subject, among other conditions, to their being concomitant respect given to the laws of the home country by the court of the foreign state. Since under Jordanian law, sale of property to an Israeli is a capital crime, the notion of Jordan ever giving recognition in its courts to the property laws of the State of Israel is sadly laughable.

Even if all these issues were set aside and an Israeli court was willing to provide a hearing to petitioners who came forward after more than 45 years and asserted claims based on Jordanian law, a fundamental requirement of the rule of law would be to determine the question of ownership prior to destruction of property. This has yet to be done.

Thus, not only does the government have no obligation to destroy homes in Bet El and Migron, it has no right to do so. And now that the government has realized that its initial commitment to do so was wrong, it is preposterous to argue that the Supreme Court can order compliance with a government undertaking that had no legal or moral basis in the first place.

Finally, in cases like these, where value was paid for property and the purchasers had no reason to believe, especially given government involvement and encouragement in the project, that there was any defect in title, legal doctrine widely recognized for centuries in Western legal systems would result in payment of compensation to a prior existing owner, rather than eviction. Destruction of property would be out of the question.

After all, how would that help the original owner, especially, as in this case, where he could not take over the property? But what drives the NGO petitioners is not justice, but rather the goal of uprooting Jews from Judea and Samaria. The granting and championing of a court order to destroy Jewish homes, even without a hearing on the merits, indicates not a genuine interest in executing justice, but rather an interest in appearing just. And what better way to do so than to side with petitioners who are Palestinians, especially if it’s at the expense of residents who are “Settlers”? The hypocrisy of the Supreme Court decisions in the Bet El and Migron cases is evident from a comparison with its handling of cases involving land seizures by Beduin in the Negev. In those cases, legal determinations were made that Beduin groups simply took over, without any payment, thousands of dunams of state land. Yet no orders of eviction or destruction have been issued by the Supreme Court during decades-long litigation.

Aharon Barak’s “Constitutional Revolution” has led to the Basic Laws being abused in ways not contemplated, intended or desired by the Knesset or the people. And this stranglehold on democratic processes is further exacerbated by the regular threats by the attorney-general and his staff that they will not defend legislative initiatives by the Cabinet or Knesset because of their alleged “constitutional defects.”

A legitimate constitution and expanded judicial powers cannot be achieved by judicial fiat. It is time to put an end to the harmful phenomenon of the Supreme Court acting as an unelected super-legislature.

Link: http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?id=270898

The writer is an attorney in Israel and New York and a member of the Likud’s central committee.

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