December 9, 2011, 4:18 AM
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Last Thursday, in an address before the Association for Public Law's annual conference at the Dead Sea, Supreme Court President Dorit Beinisch launched an unhinged attack on the Knesset and the government.
Beinisch accused Israel's elected officials of "inciting against the judges" through their proposed legislation that would place minimal constraints on judicial power.
In her words, "For the past few years a campaign has been waged that is gaining strength whose goal is to weaken the judicial system and first and foremost the Supreme Court. This is a campaign of delegitimization being led by a number of politicians, members of Knesset and even government ministers. They provide the public with incorrect and misleading information that has deteriorated into incitement directed against the court, its members and its judicial work."
Beinisch claimed that the attempts by Israel's elected leaders to curb judicial power places the country on a slippery slope whose ultimate end is to destroy the values that underpin Israeli democracy. After she stepped down from the podium, her associates briefed journalists without attribution that Beinisch believes that the bills being debated are comparable to Nazi legislation barring Jews from the public square.
Since Beinisch's professional godfather, retired Supreme Court president Aharon Barak, enacted his "judicial revolution" in the 1990s, Israel's judicial system has been without parallel in the Western world. Under Israel's judicial selection system, judges effectively appoint themselves. And since Barak's presidency of the Supreme Court, justices have used this power to ensure ideological uniformity among their ranks. Jurists opposed to judicial activism have been largely blocked from serving on the High Court, as have jurists with non-leftist politics.
Not only do Israel's judges appoint themselves, they have empowered themselves to cancel laws of the Knesset.
Under Barak's dictatorial assertion that "everything is justiciable," the Court has given standing to parties that have no direct - and often no indirect - connections to the subjects of their petitions. In so doing, the Court has managed to place itself above the government and the Knesset.
In recent years, the Court has canceled duly legislated laws of the Knesset and lawful policies of the government and the IDF. Its decisions have involved everything from denying Jews the right to build Jewish communities on Jewish land, to requiring the state to compensate Palestinians for damages they incur while fighting Israel, to changing the route of the security barrier, to barring radio broadcasts by the right-wing Arutz Sheva station.
The Knesset's efforts to pass laws that would curb the Court's now unlimited powers are simply attempts to place minimal legal checks on judicial power. One bill under discussion would require Supreme Court nominees to undergo hearings at the Knesset before their nominations are approved. Under the proposed law, the unelected Judicial Appointments Committee would remain responsible for nominating and approving justices. It's just that the public, through its representatives in the Knesset, would have the opportunity to find out a bit about who these people are before their appointments are voted on.
Another proposed law would seek to water down the legal fraternity's control over judicial appointments by making a slight change in the composition of the Judicial Appointments Committee.
If both of these laws passed tomorrow, Israel's Supreme Court would still be more powerful than any other Supreme Court in the Western world. The government would still have nearly no say in who gets appointed to the bench.
Yet Beinisch and her associates have no interest in considering the substance of the bills being debated. For them the very notion that mere politicians dare to consider placing any check on judicial power is such an outrage that they feel justified equating the initiatives with the Nuremburg Laws in Nazi Germany.
BEINISCH IS not alone in her campaign to demonize politicians who question Israel's out-sized judicial dictatorship. Attorney-General Yehuda Weinstein has used his powers of office to intimidate and threaten Prime Minister Binyamin Netanyahu and his government into backing away from all the proposed bills aimed at curbing judicial power.
Speaking at a legal conference in Eilat last Tuesday, Weinstein bragged that he forced Netanyahu to table discussion of the bill that would require Knesset hearings for Supreme Court nominees. As he put it, "When the law that would institute a hearing came to my attention, I called the prime minister and told him that this bill will not pass and must be eliminated now and immediately."
After relating that Netanyahu responded that he would end discussion of the bill, Weinstein proclaimed that anyone wishing to reform the judicial system would find in him "a bitter, stubborn enemy."
This week, Weinstein struck again. On Tuesday, he sent a letter to Netanyahu in which he demanded that the premier drop discussion of a Knesset bill that would restrict foreign governmental funding of Israeli-registered political NGOs. Weinstein informed Netanyahu that he would refuse to defend the law when it is challenged before the Supreme Court because he considers it "unconstitutional."
Faced with Weinstein's threat, on Wednesday Netanyahu's office told the media that the prime minister has decided to postpone discussion of the bill. Until Wednesday, Netanyahu had openly supported one of the versions of the proposed law.
Weinstein's decision to constrain Netanyahu's governing authority is not new. In January, after the Government Appointments Committee approved Netanyahu and Defense Minister Ehud Barak's decision to appoint Maj.-Gen. Yoav Galant as IDF chief of staff, and after the government approved his appointment, Weinstein informed Netanyahu that he would refuse to defend Galant's appointment before the High Court.
A previously unheard of NGO called The Green Movement had petitioned the Court demanding that it cancel Galant's appointment. Galant had wrongly used state land adjoining his homestead on Moshav Amikam. And the Green Movement claimed that this administrative infraction rendered him unfit to command the army.
It is impossible to know how the Supreme Court would have ruled on the Green Movement's petition. On its face it was fatuous given that Galant's behavior constituted an administrative offense for which one pays a fine, rather than a criminal offense for which one goes to jail.
In the event, the Court never considered the petition because Weinstein told Netanyahu that due to his own "ethical" misgivings, he would refuse to defend Galant's appointment. Left without legal defense, Netanyahu gave in to Weinstein and canceled Galant's appointment.
In openly undermining the Knesset and the government, Weinstein is behaving in a manner that is contrary to the law. Israeli law prohibits government officials from undermining the lawful functioning of both elected arms of government.
And yet, in the name of protecting democracy, or protecting the constitution, (Israel has no constitution), Weinstein openly flouts the authority and rejects the prerogatives of the people's elected representatives in the Knesset and the government.
And he is not alone. In February, the Knesset passed a law requiring NGOs to publish on their websites quarterly reports on all the contributions they receive from foreign governments. Ten months later, the law has yet to be implemented.
The delay is due to the fact that the Justice Ministry has not bothered to publish the law's accompanying regulations. Without such regulations, the law cannot be implemented.
ON THE face of it, Beinisch's and Weinstein's vociferous opposition to attempts to constrain foreign government funding of Israeli-registered anti-Israel NGOs makes little sense. Why would they stick their noses out for groups like B'Tselem or Yesh Din or Adalah that seek to delegitimize Israel's right to defend itself, or support economic and legal warfare against the country? Why are they sticking their noses out for these radical, anti-Zionist groups?
Upon consideration, however, the reason is clear. The Court's ability to dictate government policy is dependent on the existence of these political NGOs. The Court cannot constrain IDF counterterror operations if it isn't asked to intervene by NGOs. And the attorney-general cannot scuttle legislative initiatives or government policies or appointments if he cannot assume that his colleagues in the NGO sector will challenge those initiatives and policies before the Court.
Lawsuits are an expensive business. To continue their legal campaigns against the prerogatives of the government and the Knesset in the High Court these NGOs require enormous budgets. Without foreign governmental funding, the likes of Peace Now, Adalah, Ir Amim, Gush Shalom, B'Tselem and others would be forced to curtail their legal campaigns against the state.
So Beinisch's and Weinstein's attacks on politicians who introduce bills to curb foreign governmental funding of these political NGOs are perfectly reasonable. No, in protecting these groups they are not demonstrating their commitment to civil rights. They are the judicial equivalent of street toughs, protecting their territory.
It is important to note that the legal fraternity would never be able to maintain its choke-hold on the government and the Knesset without the active support of the media. Although Beinisch claimed last week that some media institutions are active participants in the politicians' supposedly nefarious propaganda war against the Supreme Court, the fact of the matter is that Israel's mainstream media is the legal fraternity's most fervent defender.
Since Barak began his judicial revolution in 1995, the media have portrayed the Supreme Court's usurpation of the powers of the Knesset and the government as acts of enlightened guardians of democracy. Radical commentators like Moshe Negbi and Dana Weiss have attacked as anti-democratic all politicians and legal experts who criticize the Court's runaway judicial activism. In recent months, the media have demonized Knesset members like Yariv Levin and Ze'ev Elkin from the Likud and Faina Kirschenbaum from Israel Beiteinu as enemies of democracy for their leadership in pushing judicial and NGO reform laws through the Knesset.
For the past decade and a half, the Court's undermining of Israel's elected leadership has weakened democracy and subverted the public's will. Over the past decade, Israeli voters have rejected overwhelmingly radical political parties like Meretz. But through the Supreme Court and the legal fraternity, their allied foreign government- funded Astroturf pressure groups, and the supportive media, the values and views advocated by Meretz have been forced down the public's throat over and over again.
And now, for the first time, in recent months our elected representatives have launched a brave and concerted effort to reinstate the sovereignty of the Knesset. Their modest initiatives are aimed at restoring the power of the people through our elected representatives to determine the course of the country and to implement policies that reflect our interests and our values.
The incendiary howls of the likes of Beinisch and Weinstein show us that these initiatives are well-placed. After years of constant attacks on our democratic system, the powerful legal fraternity is finally on the defensive.
This fight could not be more important to the well-being of this country. Now is no time for our leaders to go wobbly.
Originally published in The Jerusalem Post.
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Is it any wonder that Jews who have lived in Israel for generations want to leave? The Left and NGOs have taken over the government and media, and by their actions have demonstrated that justice is a farce unless it serves their interests only. It is time for Bibi and those who care to take a stand. With the world in turmoil and our enemies at our gates waiting to annihilate us, we cannot afford to be weak. Caroline, once again thanks for your words from the heart. Shabbat shalom.
Since Barak began his judicial revolution in 1995, the media have portrayed the Supreme Court's usurpation of the powers of the Knesset and the government as acts of enlightened guardians of democracy. Radical commentators like Moshe Negbi and Dana Weiss have attacked as anti-democratic all politicians and legal experts who criticize the Court's runaway judicial activism. "
This is exactly what is happening in the US. The left finds that it cannot do what it wants and then proceeds to have it's judiciary do it for them. They have become nothing but black robed traffic lights for Marx.
"the Court has managed to place itself above the government and the Knesset." In most so-called democracies today the real power lies not in the voter per se but in the media and judiciary. Israel has a unique claim to distinction in that she has both totally opposed to the will of the overwhelming majority of voters and doing everything to subvert it.
"Unconstitutional"? Were there a constitution, perhaps checks and balances would mitigate such excessive power on the part of judiciary ... one can only dream of such an authentically democratic future for Israel.
I would rather prefer the current judicial system than any judge in the Israeli justice machinery appointed by politicians leaning towards Gush Emunim or their ilk.
Caroline your right, now is the time for the leaders to restore control of the government to the representatives of the people and for the people.
I don’t pretend to be knowledgeable of the workings of the Israeli government however, from your article and comments of my Israeli friends on Israpundit, control of the government is in the wrong hands.
Not good at all.
As you stated, now is not the time for the leaders to go wobbly.
I also believe the importance of the Israeli leadership and courts to recognize Israel as a Jewish Nation guided by the Torah.
Great reporting! So Israelis are starting to rebel against the domination of experts! The Neopopulist revolution continues!
It is disgusting that leftist activists usurp governmental powers and then cry "Nazi!" when the accountable representatives seek to return power to the people.
But it is hard to imagine that the Israeli judiciary has usurped more power than the American. Look how the whole fabric of life in the U.S. is determined by court rulings: pornography runs rampant, because of the perversion of the 1st Amendment; criminals go free on search and seizure violations, in a perversion of the 4th Amendment; abortion and sodomy are legal no matter what state legislatures may say, because of a court-invented right to privacy; prayer is banned from public schools, in another perversion of the 1st Amendment; loitering is allowed to degrade public places, based on some court-discovered right; and the states are bound by constitutional limits clearly aimed at the federal government based on the phony doctrine of incorporation.
Is the whole texture of Israeli life, especially the destruction of the people's morality, determined by the courts? If not its court is not as overreaching as ours.
Thank you for providing this chilling account of a Judiciary donning the robes of a tyrannical olagarky (sp) that seems possible if not probable in the US. I have not yet confirmed, but had read an account wherein the US Supreme Court recently issued an opinion regarding its jurisdiction that it had the original jurisdiction to review any law and rule on its Constitutionality. If this be true, nothing short of a legislative dismissal of entre US Circuit Courts is needed and have them reconstitued.
Maybe Bibi should take a note from American history. When the US Supreme Court nullified a Georgia law, President Andrew Jackson said,
"John Marshall has made his decision; now let him enforce it!" In other words, the Court's opinion was moot because it had no power to enforce its edict.
There is nothing real to stop the Israeli Parliament from passing a law that would require judgeships to be filled by election of the voting population. The problem with having the executive branch appoint judges, is that a president might be good at executive functions like waging war, but not well enough versed in law to be qualified to appoint judges. Let the people generally be the judge who their legislators, enforcers, and judges will be.
If Israel has no constitution, then the last rightful constitution was the 12 tablets of Rome. Of course the republic was overthrown by Caesarism and by 70AD was effectively nullified.
If the republic were restored in Palaestina/Israel, what was a roman province, would be the entire roman republic.
Perhaps Bibi is not able all by himself to declare the restoration of the republic, but certainly he could show more spine than he has already.
Until the election system is shunning 800,000 israelis residing abroad from voting, you will have a heavy anti-zionist numbers of parliamentaries sitting aloof in the Knesset who are accomplices of the Supreme Court assault on the zionist majority. There is only ne way to reverse the current situation nd it is to give israelis living abroad the right to vote at their israel's consultate at each election . I can tell you that those israelis living abroad have a strong connection to the country, to zionism and that they are immensely patriotic.I have no doubt 7 out of 10 would vote for the zionist parties. Let's say only half ( 400,000 ) who vote , that would result in 6 or 7 parliamentaries in the next knesset ( one MP is roughly 60,000 voters in thhe proportionnal system ). This new force would prop up in any election patriotic and zionist parties. It is no accident that the fierce opponents to this right of vote are tha Arab parties and the left of Yossi Beilin . Each mature democracy gives its citizens the right to vote wherever they are 8 USA France UK Italy etc..) It is unbelievable that only the israelis are deprived of this very basic right.
"Unconstitutional"?
Were there a constitution, perhaps checks and balances would mitigate such excessive power on the part of judiciary ... one can only dream of such an authentically democratic future for Israel."
Here in the US where we have a constitution ,the perverted,leftist judges rule against the voters and their will on a regular basis... AND THE CHECKS AND BALANCES NO LONGER WORK WITH EVIL MEN AND WOMEN IN POWER WHO DO NOT HONOR ANYTHING ESPECIALLY THE TRUTH.
The will and the vote of the people are too often overturned by the revolutionaries who have long ago taken control and the Constitution is interpreted to mean what they say.
Darkness has settled and evil has taken over and only God can clean up the wickedness that permeates His earth.
The Supreme Court of Israel, like their United States counterparts, prove that absolute power corrupts absolutely. Not self-limited by a Constitution like their U.S. brethren, they are free to run wild. Lest Israel make the mistake of using the U.S. model as a basis of reform, note that the U.S. counterpart also declares laws enacted by lawmakers throughout the states (and government actions) constitutional or not, effectively legislating from the bench, power NOT GRANTED by the Constitution of the United States. The high court usurped that authority early on, using its status as final arbiter of Constitutional ambiguity [rare in such a short, concise document) to cover political intrigue.
Dear Caroline
Great reporting, for me this gives more understanding of why it seems Israel always shoots its-self in the foot. Now I see more times than not, the gun is in the hand of the Judicial system. I see why outside funding has more power than the Jewish people. Its amazing that the working man in Israel pays the salaries of these judges, and the judges stab them in the back. Money and absolute power corrupts absolutely, either one is trouble, but mixed together only God can break them, and that He will. My observation, it will be hard for the working man to change anything, all people in power will protect one another, for fear they may be next to loose a little power. I am not saying they should not try. People of power would rather see the country destroyed than give up any power. Sin is always the same since the beginning of time, nothing new, same old rebellion. God bless you Caroline.
Ivan