Alex Rose

Israel’s Dysfunctional System Is Beyond the Pale

“We will divide up the region. Israel will return most of the West Bank, and the Palestinian flag will fly on public buildings in East Jerusalem.” [Yair Lapid as reported by Der Spiegel, May 8, 2008]

It does seem that the knights of yesteryear, those given to 3rd world mentality feel entitled to lead the charge. This is in the face of intellectuals, such as Professors Bernard Lewis and Alan Dershowitz.

“Judicial reform protests continue across Israel for 23rd straight week” by the Jerusalem Post staff, a lead commentary appeared in the June 11, 2023 edition.

We learn from this that approximately 80.000 people demonstrated in Kaplan Street and 100,000 people protested against the judicial reform overall in Tel Aviv. Ynet reported 1,000 people demonstrated in Jerusalem in front of the President’s house. This is hardly consequential give Israel’s total populous of around 9.45 million.

What is it that they are rebelling against? Do they not understand the origin of the existing faulty democracy? In 1953, the Knesset, Israel’s legislative body misguidedly passed a law allowing judges themselves to play the dominant role in determining judicial appointments. This, unique among democracies, ultimately resulted in the Supreme Court becoming ideologically homogeneous, thereby rendering its long record of judicial prudence vulnerable to dramatic reversal.

The major catalyst in this reversal was Aharon Barak. In his initial revolution, Barak broadened the grounds on which courts could intervene in state policy and then eliminated 2 crucial limitations in legal jargon, “standing” and “justiciability” —on the sorts of cases they could hear.

Until 1981, the courts would not invalidate a government policy unless it could be regarded as an abuse of authority. From that year, the court could invalidate the subject policy as “unreasonable.” In plain English, it could invalidate any policy it did not like.

By 1986, the court with Barak as its head, ruled that standing was no longer a requirement. In the following years, the court entertained petitions by various political actors, including opposition Knesset members, offended by one or another government policy.

Subsequently, Barak would go on to cite his theoretical abolition of both standing and justiciability as established jurisprudence. Freed of all constraints, the court would then address such security issues as military tactics, the separation barrier near the Green line, and negotiated deals involving prisoner releases. Mishael Cheshin, Barak’s colleague on the Supreme Court, once observed that “Justice Barak is willing to see 30 or 50 people blown up for the sake of human rights.”

In what is perhaps the single most consequential passage in the history of Israeli jurisprudence, Barak argued that he attorney general, as the “authorized interpreter of the law with regard to the executive branch,” was under no obligation to defend the policies of the prime minister

. As we move along, it becomes evident that Israel’s political climate needs to be changed, before its laws can be changed. By allowing a bogus case to remain open, the court [or the attorney general] can exert its influence on policymaking.

Barak explained that the society to whose fundamental values he referred was not the entire society, but rather only the “enlightened public.” And what were those “fundamental values”? Whatever the court said they were. In other words: the Law is us. Generations of Israeli law students have been taught Barak’s doctrine as gospel.

Evelyn Gordon is a commentator and former legal-affairs reporter who immigrated to Israel in 1987, immediately after obtaining her degree in electrical engineering from Princeton University, and has worked as a journalist and commentator in Israel since 1990. Her expertise on democracy is highly acclaimed and can be found in most of the recognized print industry.

A prime example of her outstanding work can be viewed in the body of Commentary’s March 2015 edition, “Israel’s Left-Wing Right Wing”. It reads:

“Take, for instance, several bills in recent years aimed at giving the public’s elected representatives control over Supreme Court appointments, which Leftists have consistently slammed as ‘anti-democratic.’ Former supreme Court President Aharon Barak, for example, declared that this would ‘set Israeli democracy back several years’ and even ‘turn Israel into a Third World  country.’ Yet in almost every other democracy worldwide, Supreme Court appointments are controlled by executive and/or legislative branches.

Only in Israel are justices instead, chosen primarily by unelected legal officials. [Israel’s nine-member Judicial Appointments Committee includes three sitting justices chosen by the Supreme Court itself and two lawyers chosen by the Bar Association.] And to claim that appointing justices the same way as all other democracies do would somehow be ‘anti-democratic’ is absurd.”

“Israeli judicial reforms are ‘wrong’ and ‘predatory’ is the title of an Op-Ed in the Jerusalem Post of 9 March, 2023, attributed to Isaac Herzog. Apparently, he condemned the judicial reforms proposed by the coalition, saying they ‘undermine’ the state’s democratic foundations.’

Back on February 22, 2016, The American Prospect published “Isaac Herzog: The Man with Small Answers” by Gershom Gorenberg. The introduction reads, “The leader of Israel’s Labor Party says he has the solution for the diplomatic deadlock. But he’s really part of the problem.” And so it remains today. Coming from an outstanding family, he has the distinction of being its black sheep.

On January 15, 2023, Times of Israel posted “Slammed for Inaction, Herzog says trying to mediate on judicial reform, might fail.” His known Leftist tendencies will ensure failure.

Greer Fay Cashman’s “Its Time for an electoral reform – opinion” published by The Jerusalem Post on June 18, 2022, focuses on a very important item, which apparently is not included in the reforms the Likud is promoting. In her words, “Any parliament is supposed to represent the people, but if Knesset members are not all democratically elected, then they don’t all represent the people.”

She also points to the need for change to ensure that every party has primaries to ensure that Knesset members are elected by the people and are not chosen by the leader of the party.

Daniel Tauber’s “Is this democracy?”[Jerusalem Post, March 5, 2013] echoes the same sentiments as Cashman. He remarks, “But in all the talk about electoral reform and why it is necessary, one element has been sorely missing. Perhaps that is because it is not an easy truth to admit. Israeli citizens don’t elect representatives and an essential component of democracy is therefore missing.”

Evelyn Gordon’s, “Israel’s Judicial Reckoning” is a professional treatise and is readily available to all those who desire an understanding of the proposed reforms. In her words:

“Yet despite all the genuine risks, judicial reform is a long overdue response to the real and decades-long problem of judicial overreach. As long as it’s calibrated properly, far from undermining Israel’s democracy, such reform would bolster it. Removing the court from disputes over policy and values would force sides to fight those battles in the public arena, where they belong.”

About the Author
Alex Rose was born in South Africa in 1935 and lived there until departing for the US in 1977 where he spent 26 years. He is an engineering consultant. For 18 years he was employed by Westinghouse until age 60 whereupon he became self-employed. He was also formerly on the Executive of Americans for a Safe Israel and a founding member of CAMERA, New York (Committee for Accuracy in Middle East Reporting in America and today one of the largest media monitoring organizations concerned with accuracy and balanced reporting on Israel). In 2003 he and his wife made Aliyah to Israel and presently reside in Ashkelon.
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