Thursday, November 03, 2016

 Vic Rosenthal's Weekly Column

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.

I used the expressions ‘right’ and ‘left’ above, but that isn’t the whole story. The disagreement is about much more than the desire of politicians to have a court that will take their side about issues like the development of Israel’s gas reserves, drafting Haredim, or the settlement enterprise. It is about the most basic principle of all: what kind of state will we have?  Most will say that it is a Jewish and democratic state, but ideas of what this means in practice diverge widely.

Israel doesn’t have a constitution; instead it has a number of Basic Laws that partially define the nature of the state. There has been a great deal of discussion about what constitutes the Jewish aspect of the state, and recently there was a controversial attempt to introduce a Basic Law that would specify its precise meaning. The Supreme Court was a silent partner in all discussions about the law, because it was clear to all parties that the court would immediately test it – and probably find any non-vacuous version inconsistent with the existing Basic Laws. Various versions of the law were discussed, but so far nothing has been passed. If such a law does pass, chances are that it will be less ambitious than the earlier versions.

Is it an appropriate role for a court to judge the state’s self-definition? Or is this something that should be left to the representatives of the people?

The Amona settlement decision is another situation in which the ideological bent of the Court may have played a role. The settlement of Amona was declared to have encroached on land which was owned by Palestinians, and ordered by a court (and the order approved by the Supreme Court) to be demolished. The Knesset, looking for a compromise, proposed that the Palestinians be compensated and the buildings allowed to remain. But the Attorney General indicated that the Court would find such a solution “unconstitutional.” 

The case was very complicated, as are all land ownership issues in Israel. The settlement had been there for several years and the Palestinians had not worked the land in question. The case was brought by a left-wing, foreign-funded NGO (“Yesh Din”) on their behalf. Could there really be no option other than destroying the settlement?

Something is backwards here. In a democracy, the power to govern ultimately resides with the people. In a modern state they express their will through their elected representatives. It is important that the rights of minorities be respected, but it is the majority that decides. But in Israel, the Supreme Court is not selected or even confirmed by the representatives of the people. There are no checks and balances – there is no way the Knesset can appeal or override a court decision. It is both totally independent and all-powerful.

And unfortunately, it leans in one direction. It values a European vision of democracy, universalism over nationalism, a “state of its citizens” over the more conservative, Zionist idea of a state that belongs to the Jewish people. When the Court believes that Zionism and minority rights conflict, it chooses minority rights. 

Today there is a struggle between the remnants of the secular, Ashkenazi, universalist, dovish, elite that once ran the country, and the more religious, more Mizrachi, nationalist and hawkish population that is now the majority, and which elects right-wing candidates to the Knesset. It is being played out in the arena of arts and culture, where Miri Regev is challenging the old establishment; it is also happening in the academic world, where Naftali Bennett as Minister of Education is trying to rein in the excesses of the professorate. In the last few days we’ve seen yet another cultural struggle, this one over the new Public Broadcasting Corporation, which Likud politicians say has been co-opted by the left-wing journalists that overwhelmingly dominate the media.

All of these elites have maintained their control of these realms because they are self-selecting. They complain about “political interference” and “undemocratic” actions by the ministers that are trying to change them, but in reality it is the politics of today’s Israel that is trying to “interfere” with institutions that are run according to the politics of the 1960s.

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.





We have lots of ideas, but we need more resources to be even more effective. Please donate today to help get the message out and to help defend Israel.

EoZTV Podcast

Podcast URL

Subscribe in podnovaSubscribe with FeedlyAdd to netvibes
addtomyyahoo4Subscribe with SubToMe

search eoz

Loading...

comments

Speaking

follow me

Follow by Email

translate

Share on Whatsapp


E-Book

For $18 donation








Sample Text

EoZ's Most Popular Posts Ever

Hasbys!

Elder of Ziyon - حـكـيـم صـهـيـون

This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 12 years and over 25,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.

Donate!

Donate to fight for Israel!

Monthly subscription:
Payment options


One time donation:

subscribe via email

Follow EoZ on Twitter!

Tweets

Compliments

The Jerusalem Report:"A seemingly indefatigable one-man operation, armed only with a computer, chutzpa and stamina."

Algemeiner: "Fiercely intelligent and erudite"

Omri: "Elder is one of the best established and most respected members of the jblogosphere..."
Atheist Jew:"Elder of Ziyon probably had the greatest impression on me..."
Soccer Dad: "He undertakes the important task of making sure that his readers learn from history."
AbbaGav: "A truly exceptional blog..."
Judeopundit: "[A] venerable blog-pioneer and beloved patriarchal figure...his blog is indispensable."
Oleh Musings: "The most comprehensive Zionist blog I have seen."
Carl in Jerusalem: "...probably the most under-recognized blog in the JBlogsphere as far as I am concerned."
Aussie Dave: "King of the auto-translation."
The Israel Situation:The Elder manages to write so many great, investigative posts that I am often looking to him for important news on the PalArab (his term for Palestinian Arab) side of things."
Tikun Olam: "Either you are carelessly ignorant or a willful liar and distorter of the truth. Either way, it makes you one mean SOB."
Mondoweiss commenter: "For virulent pro-Zionism (and plain straightforward lies of course) there is nothing much to beat it."
Didi Remez: "Leading wingnut"

Interesting Blogs

Categories

Abbas liar Academic fraud administrivia al-Qaeda algeria American Jews Amnesty analysis anti-semitism apartheid arab refugees Arafat archaeology art ASHREI B'tselem bahrain bbc BDS BDSFail Bedouin Beitunia beoz book review breaking the silence Cardozo Chanukah Christians conspiracy theories Cyprus Daphne Anson Davis report DCI-P double standards Egypt Elder gets results ElderToons Electronic Intifada EoZNews eoztv Erekat EU Euro-Mid Observer Fake Civilians 2014 Fatah featured Features fisking flotilla Forest Rain free gaza freedom of press palestinian style future martyr Gary Spedding gaza Gaza Platform George Galloway George Soros gideon levy gilad shalit gisha Goldstone Report Good news Grapel Guardian gunness Haaretz hamas Hamas war crimes hasbara Hasby 2014 Hasby 2016 Hebron helen thomas hezbollah history Hizballah Holocaust denial honor killing HRW Human Rights Humanitarian crisis humor Hypocrisy ICRC Ilan Pappe impossible peace incitement Indonesia international law intransigence iran Iraq Islamic Judeophobia Islamism Israel Loves America Israeli culture Israeli high-tech J Street jabalya jeremy bowen Jerusalem jewish fiction Jewish Voice for Peace jihad jimmy carter John Kerry jokes jonathan cook Jordan Juan Cole Judaism Judea-Samaria Kairos Karl Vick ken roth khalid amayreh Khaybar Lebanon leftists Linkdump lumish mahmoud zahar Malaysia max blumenthal McGraw-Hill media bias Methodist Miftah Mohammed Assaf Mondoweiss moonbats Morocco music Muslim Brotherhood Nakba Natural gas Nazi News nftp NGO NIF norpac NYT Occupation offbeat Omar Barghouti Opinion oxfam PA corruption PalArab lies Palestine Papers pallywood pchr PCUSA Peter Beinart Petra MB poll Poster Preoccupied Prisoners propaganda Proud to be Zionist purimshpiel Qaradawi Qassam calendar Rafah Ray Hanania real liberals reference Richard Falk rogel alpher roger cohen roger waters Saudi Arabia saudi vice self-death self-death palestinians sex crimes SFSU shechita sheikh tamimi Shujaiyeh Simona Sharoni SodaStream South Africa Speech stamps Syria Tarabin Temple Mount Terrorism This is Zionism Thomas Friedman Tunisia Turkey UCI UK UN UNDP unesco unhrc UNICEF United Arab Emirates Unity unrwa UNRWA hate unrwa reports UNRWA-USA Varda Vic Rosenthal Washington wikileaks work accident X-washing Yemen zahran zionist attack zoo Zvi

Blog Archive