Seriously, is it really the end of democracy in Israel? - by Douglas Altabef

Israel is a society that certainly has problems, pressures and tensions that cry out for leadership. Happily, the democratic health of our society is just not one of them.

Douglas Altabef..
Israelnationalnews.com..
17 July '19..
Link: https://www.israelnationalnews.com/Articles/Article.aspx/24164

One of the recurrent drumbeats heard from certain quarters in Israel is that we are teetering on the brink of losing our democratic bearings. There are those who hear it in distant thunder claps, while others think it has already happened. To them, we are already in the morass of some kind of (pick as many as you like) theocratic, populistic, authoritarian, fascistic regression.

What are the signs of this 'capitulation'? Actually there is a common thread here. They mostly concern decisions made, or positions that the Left disagrees with.
What are the signs of this 'capitulation'? Actually there is a common thread here. They mostly concern decisions made, or positions that the Left disagrees with. One prominent example is criticizing the unfettered discretion of a Supreme Court that increasingly sees itself as a court of first instance, and one that applies its own non-definable standards for what it deems to be judiciable.

Others involve pushing back against strident criticism of our society by cultural or academic elites, who evidently believe that theirs are perspectives beyond question, let alone reproach.

There is an interesting commonality to all the doomsaying. It tends to be said in the context of outcomes, not of process.

Now, the classic way of assessing whether a society is democratic is how it conducts itself. Do people feel free to voice their opinions? Is the press unfettered in its reporting of the news (forgetting whether or not such reporting is accurate)? Are dissenting opinions tolerated? Is there an attempt to exclude other voices or perspectives from the public square?

Democratic societies are such for the ways they conduct themselves rather than for the policies they end up choosing – so long as those policies do not impinge on how a society conducts itself.

It seems to me that Israel fares quite well, both in absolute and relative terms in how we are able to conduct ourselves.

In relative terms, we look around the Western world, and see true intimidation, mostly by the Left, for those who either do not subscribe to their views, or worse, oppose them. The Progressive movement in America is increasingly taking on Jacobin proportions, where opposing views and speakers who espouse them are not to be allowed to speak or even appear. The frightening mob that constitutes Antifa – anti-fascism – is actually the very embodiment of totalitarian repression.

Intersectionality has decided which identity groups, causes and points of view are acceptable, and which need be shut out and shut down. Free speech is increasingly being perceived negatively as a way for privileged whites to maintain themselves, not as the content-free pillar of a liberal democratic society.

Does this sound like the situation here in Israel?

Israel's pressing need to restore the balance between the Knesset and the Court - by Vic Rosenthal

...A balance between the powers of the various branches of government is important to protect minority and majority rights. A comparison with the Supreme Court in the US will be helpful in understanding just how unbalanced the situation in Israel is.

Vic Rosenthal..
Abu Yehuda..
27 April '18..
Link: http://abuyehuda.com/2018/04/restoring-the-balance-between-the-knesset-and-the-court/

A hot potato today in Israel’s Knesset is the so-called chok hahitgabrut (literally, “the overriding law”) which would provide a way for the Knesset to pass a law over the objections of the Supreme Court. Various versions of such a law have been considered, which require larger or smaller majorities in the Knesset to override a Court decision to throw out a law. Another approach would be to require more than a simple majority of justices of the Court in order to reject a law passed by the Knesset. The precise form the law might take is still up in the air.

The issue that is presently driving the controversy is a series of Court decisions that have made it impossible for the government to deport any of the 38,000 African migrants that entered the country illegally since the early 2000s. Those who want such a law say that the unelected Court rides roughshod over the views of the majority of the citizens, which are expressed by the votes of their representatives in the Knesset. That’s undemocratic, they say. Opponents argue that in a liberal democracy it is necessary to protect minority rights, which is what the Court has done.

Critics of the Court have been complaining for a long time that it is biased leftward, and that it sticks its nose where it shouldn’t, like the proposed deal regulating the concession for the natural gas recently discovered off Israel’s shores; or the ownership of property in Judea and Samaria, decisions that forced the demolition of communities and the removal of people from their homes.

But the intricacies of the gas deal were understood by only a small percentage of Israelis, and the inhabitants of the razed settlement of Amona did not find a lot of empathy in the general population, many of whom thought of them as extremists. The migrant question, on the other hand, resonates more broadly. It pits the residents of South Tel Aviv – who say that the migrants who are concentrated in their neighborhoods have brought crime, dirt and fear to them – against a coalition of organizations that claim to be defending the human rights of the migrants. In fact, many of these groups are funded by unfriendly foreign governments, or groups with a political motive to embarrass our government (e.g., the Israel Religious Action Center).

A balance between the powers of the various branches of government is important to protect minority and majority rights. A comparison with the Supreme Court in the US will be helpful in understanding just how unbalanced the situation in Israel is.

Lost deterrence thanks to the High Court, and those who pay the price are the terrorist victims and their families. - by Lital Shemesh

...As the Midrash says, he who is compassionate to the cruel will ultimately become cruel to the compassionate. When will the government realize this? Demolishing the homes of terrorists is not just punishment and revenge; it is a way of preventing similar terrorist attacks in the future.

Lital Shemesh..
Israel Hayom..
02 January '18..
Link: http://www.israelhayom.com/opinions/lost-deterrence-thanks-to-the-high-court/

The slaughtering of the Salomon family members in Halamish last July will be remembered for many years to come. A terrorist killed three family members and wounded another woman. He wanted to kill everyone who was present in the home, including children, but was stopped.

Last week military prosecutors asked that the killer be given three consecutive life sentences for the murders and another life sentence for the attempted murders. At the sentencing hearing, the terrorist could be seen flashed a wide smile for the cameras. He is now going to get tens of thousands of shekels from the Palestinian Authority. His home is still standing, because the state has decided to destroy only one floor so that the rest of his family members would not be affected. But let's not forget that five of his family members were convicted of being an accessory to a crime because they failed to act despite knowing his plan.

The Salomon family petitioned the High Court of Justice and asked that the rest of his family home be demolished, but their request was denied. Yes, his family members should be treated with compassion despite his attempt to destroy an entire family, but we should also show compassion for future victims of terrorism.

Under Israel's emergency statutes, the military can demolish structures where terrorists had resided. Former Supreme Court Justice Elyakim Rubinstein once wrote: "The defense establishment has shown that there is indeed a good reason to believe that such action does, in fact, deter terrorists from carrying out similar activity and the supporting evidence is overwhelming compared with other indications."

But the High Court of Justice has for years chosen to walk down a different path, imposing many restrictions on using this measure. This has undercut the state's deterrence and its efforts to fight terrorism.

Breaking Israel’s Imperial Court : The Imperative to Restore Israeli Democracy - by Caroline Glick

...if the Knesset and the government do not act immediately to end the Supreme Court’s escalating judicial coup, 10 years from now there won’t be a ceremony to mark 60 years of settlement in Judea and Samaria, the Golan Heights and the Jordan Valley. The justices won’t allow it.

Caroline Glick..
Carolineglick.com..
29 September '17..
Link: http://carolineglick.com/breaking-israels-imperial-court/

Prime Minister Benjamin Netanyahu had an applause line that should have brought the house down in his speech at Wednesday’s official ceremony celebrating 50 years of settlement in Judea and Samaria, the Jordan Valley and the Golan Heights.

Netanyahu was speaking before a crowd of thousands in Gush Etzion, which was destroyed by the Arab Legion in the War of Independence, and rebuilt by the children of its massacred defenders immediately after the area was liberated in the 1967 Six Day War.

Netanyahu pledged to the audience: “There will be no more uprooting of settlements in the Land of Israel.”

He did receive enthusiastic applause. But he didn’t bring the house down. And the rest of his speech was met with a lukewarm reception overall, even though he hit all the notes.

And that makes sense. As much as the audience wanted to believe him and his pledges to continue to build in the biblical and strategic heartland of the country, they couldn’t.

They knew that under the current legal regime governing the country, it’s not for elected officials to say whether communities will be built or destroyed.

That’s up to the Supreme Court, whose justices have seized the power to determine any aspect of Israeli law and policy that they wish. And the Supreme Court, under retiring President Miriam Naor, was boycotting the official state ceremony.

Naor’s decision to cast to the seven winds official protocol, which dictates that a representative of the court is present at all state ceremonies was not automatic. First she had agreed to send a justice to the ceremony. But after she received a request from the radical Meretz party to reconsider her decision, she revoked it.

The ceremony, she insisted, was “controversial.”

And so, the same justice who participated both in the official ceremony to mark the reunification of Jerusalem earlier this year and in a conference sponsored by radical, anti-Israel groups last December, announced that no representative of the High Court would attend.

Naor’s decision to side with Meretz, with its five-member Knesset faction, and ignore 70 years of protocol, was not an isolated event.

Over the past several weeks, the court has published an avalanche of radical decisions that both separately and together represent what many experts are referring to as a second judicial revolution.

Judicial Activism and Israel's Supreme Court Shielding of Hamas Officials from Consequences - by Evelyn Gordon

...The court’s judicial activism impedes the government’s ability to set policy in almost every walk of life, as I detailed in Mosaic last year, and several rulings over the past few months rightly outraged many members of Israel’s ruling parties. But last week’s ruling may have been a tipping point: In response, Justice Minister Ayelet Shaked and her Jewish Home party submitted legislation to curb the court’s excesses. Whether it will pass remains to be seen. But this outrageous ruling in defense of Hamas legislators amply shows why it should.

Evelyn Gordon..
Analysis from Israel..
18 September '17..
Link: http://evelyncgordon.com/israel-courts-shield-hamas-officials-from-consequences/

When Prime Minister Benjamin Netanyahu addresses the UN General Assembly on Tuesday, he’ll undoubtedly devote part of his speech to the need to fight terrorist organizations. What he probably won’t mention is that in Israel, the fight is often hamstrung by the Supreme Court’s out-of-control judicial activism, as evidenced by last week’s mind-boggling ruling denying the government the right to revoke the Israeli residency of people serving in the Palestinian legislature or cabinet on behalf of Hamas.

In 2006, three Palestinian residents of East Jerusalem were elected to the Palestinian parliament on behalf of the Hamas-affiliated Change and Reform party, while a fourth was appointed to the Palestinian cabinet on behalf of that party. Israel responded by revoking their Israeli residency rights.

To most people, this would sound like a no-brainer. Many democracies view serving in a foreign government as grounds for revocation of citizenship because holding a policy-level position in one country’s government is considered to require a level of commitment to that country, which conflicts with one’s loyalty to the other country. Indeed, both America and Israel have such rules for their own citizens in policy-level positions; that’s why, for instance, when Michael Oren became ambassador to the U.S., he had to forfeit his American citizenship, despite the fact that America and Israel are close allies.

But these four Palestinians weren’t just serving in a foreign government; they were doing so on behalf of Hamas – a terrorist organization sworn to Israel’s destruction. This, as the Israeli government correctly argued in court, constituted a massive “breach of trust” toward Israel.

The Necessity of Bringing Israel’s Supreme Court into the 21st Century - by Vic Rosenthal

...The Supreme Court is the most important and powerful institution in the state that is still firmly in the hands of the old left-wing elite. Even if you think it is a benevolent despot, it is still a despot. Shaked’s bill to end its incestuous means of reproduction is a good start to bringing it in line with the rest of the nation.

Vic Rosenthal..
Abu Yehuda..
04 November '16..

The latest battle in Israel’s ongoing struggle to define itself is being fought over the way Supreme Court justices are selected. The 15 justices are appointed by a judicial selection committee of 9 members:

- The Minister of Justice, who chairs the committee,
- One additional cabinet minister, chosen by the cabinet (i.e., the government),
- Two Knesset members, one from the coalition and one from the opposition,
- Two members of the Bar Association, selected by the association, and
- Three current justices of the Supreme Court, including the President of the Court (Chief Justice).

Presently, a super-majority of 7 committee members is required to approve a candidate. This gives the existing court justices a veto power, and – since the Court and the Bar Association lean leftward – gives left-of-center candidates a significant advantage. It also means that the Court is self-selecting and unaccountable.

The Israeli Supreme Court has far more power than the US Supreme Court. Rules about justiciability (what matters are in the purview of the Court) and standing (who can petition the court) are far looser than in other democracies; any citizen can petition the Court about any action of the government. It can throw out a law passed by the Knesset even if there’s no litigation about it. Or it can let it be known before a bill is passed that it will not approve it in its present form, and thereby force changes.

The Court greatly expanded its role and its power as a result of the activities of Aharon Barak, who was a justice from 1978-95, and its President from 1995-2006. The American jurist Richard Posner explains just how much power Barak placed in the hands of the Court (his hands!) in a review of one of Barak’s books. It is eye-opening.

Many Israelis feel that that it is unacceptable that in a democratic country so much power is held by an institution that is almost entirely not accountable to the people or its elected representatives. On the other hand, there is great respect for the Court and for the importance of having an independent judiciary and a rule of law.

The present Minister of Justice, Ayelet Shaked, has submitted a bill to the Knesset to change the rules so that only a simple majority of 5 members will be required. This would eliminate the veto power held by the current justices.

(Continue to Full Post)

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A standard for judicial imperialism that can probably never be surpassed

...But the direst wallop was delivered to what remains of Israel’s separation of powers, which pro forma guarantees that the different branches of government each retain independent authority and responsibility, thereby preventing any single branch from overwhelming and diminishing the others.

Sarah Honig..
Another Tack..
23 September '14..

The High Court of Justice has dealt Israeli democracy a grievous blow last week when for the second time in a year it nixed the notion of detaining illegal infiltrators and struck down Knesset legislation on the matter.

The operative upshot is that 2000 detainees will soon be back on the crime-ridden streets of south Tel Aviv – which has been turned into a festering lawless African enclave – exacerbating the already dreadful plight of its Israeli residents.

Worse yet, it means that all Africans have now been told that if they only manage to sneak into the Jewish state, they’d become legally invulnerable despite having willfully broken Israeli law by their illegal entry. This is a potent message.

The fence erected along much of the Israeli-Egyptian border won’t entirely stem the tide. Fences can be breached (as Gaza has only recently shown us).

But the direst wallop was delivered to what remains of Israel’s separation of powers, which pro forma guarantees that the different branches of government each retain independent authority and responsibility, thereby preventing any single branch from overwhelming and diminishing the others. Going against this fundamental rationale, Israel’s super-dominant High Court has essentially decimated any theoretical shreds of checks and balances.

This isn’t the stuff of abstract rumination by legal philosophers. Judicial ultra-interventionism affects the daily lives of Israelis and its ramifications especially impinge on the rancorous controversies that polarize public opinion.

The High Court to date has vetoed over twenty laws duly adopted by the Knesset, steadily eroding its authority.

Moreover, only by a hairsbreadth did the Court avoid doing the same in other exceptionally divisive issues (like allowing Palestinian “family reunifications” within Israel proper, which would have meant an unimaginable inflow of hostile Arabs into this country, thereby upsetting its entire demographic equilibrium). The narrow margins by which such near-calamities were averted are no less frightening than the Court’s actual high-handed judgments that overturned sometimes existential legislative decisions.

Most alarming is the fact that the nine High Court justices have usurped nearly unchallengeable powers for themselves. There appears to be no avenue left for overcoming their imperiousness. The consequences for our democracy are potentially staggering.

The Consequences of Judicial Activism

Evelyn Gordon
Commentary/Contentions
28 May '10

Israel’s Supreme Court lambasted the government this week for disobeying a temporary injunction to stop work on a West Bank road. This isn’t the first time the court has complained of governmental noncompliance with its orders; as various commentators have noted (here and here, for instance), noncompliance is rapidly becoming routine. Yet both court and commentators tend to overlook the court’s own responsibility for this problem.

In March, Haaretz published a list (Hebrew only) of nine court orders the government had yet to obey. They included orders to build 245 new classrooms in East Jerusalem, to reinforce every school within rocket range of Gaza against rockets, to build a high school in an Arab village, to relocate the security fence near the West Bank village of Bili’in, and to do the same near the village of Azzoun.

These rulings have one thing in common: each would cost hundreds of millions of shekels to implement; collectively, they would cost billions. Thus to obey them, the government would have to slash billions of shekels from other parts of the budget. And while I favor budget-cutting, most quick and easy big cuts would have disastrous consequences: slashing welfare, say, or canceling all army training exercises. Productive cuts, such as eliminating unnecessary layers of civil-service bureaucracy, are neither quick nor easy, as they would entail major fights with powerful government unions. Thus in the real world, there is no practical way to promptly obey all the court’s rulings.

But aside from the practical problem, these rulings embody a more fundamental problem: the judicial usurpation of government prerogatives. Clearly, such rulings reduce the government’s ability to set its own budgetary priorities, but the problem goes way beyond budgets.

(Read full post)

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