Alex Rose

Justice and denial

Carl von Clausewitz, the famous Prussian theoretician of war, wrote, “The first , the supreme , the most far reaching judgment that the statesman and commander must make is to establish —the kind of war  on which they are embarking —This is the strategic question of the highest priority [slightly paraphrased].[We should know the ” kind of war on which we are embarking” and deal with it accordingly. [Dr. Joel Fishman, Jerusalem Center for Public Affairs].

Israel is under attack in a political war whose goal is to bring about its “decomposition.”For the past few months, Israel has been engaged in a political war “masquerading as a series of peaceful political demonstrations.”The media has become obsessed over the proposed Government’s reforms, and yet falls short on assessing the number of rally attendees.

How many of those who attend the opposition gatherings are knowledgeable on the given subject? It is doubtful they have read books by acknowledged experts. If not, one would suggest Professor Paul Eidelberg’s “Jewish Statesmanship, Lest Israel Fall” or “Judaic Man.” He spent many years writing papers and giving lectures aside from teaching at a university. While he is now elderly, his books are still available.

As for Supreme Court Judge Aharon Barak, he has much to do with the problems we now have. On May 2003, Eidelberg posted, “The Leading Enemy of Democracy and Judaism.”  He remarks that Barak adopted the libertarian predilections of the American Supreme Court. There freedom of expression enjoys a preferred position over considerations of public morality, in consequence of which obscenity and pornography are rampant in the entertainment media.

Consistent therewith, the Barak Court nullified a law permitting the Film Censorship Board to ban pornographic movies by ruling that nothing can actually be declared pornography, as one man’s pornography is another man’s art. This democratic permissive or relativism is hardly consistent with Judaism.

Judge Barak’s view of democracy is devoid of moral law, and many of his decisions violate the cherished beliefs and values most Jews in Israel expect. Indeed, many of his decisions though often couched in democratic language , strike the candid observer as rather personal and arbitrary .Paradoxically, such decisions can hardly be democratic. One may therefore conclude that Judge Barak is an enemy of democracy, as well as Judaism.

In Paul Eidelberg’s “Israeli Democracy” of August 15, 2013, published by Arutz 7, he informs us that it is no wonder that so many citizens feel powerless to affect government actions, such as preventing the freeing terrorists or capitulation to Obama – Abbas.

For most people, the mere fact that Israel has periodic multiparty elections convinces them that Israel is a democracy. This is naïve. Democratic elections do not necessarily render the government of a country accountable to the governed, and without accountability, there is no genuine democracy. And accountability is lacking in Israeli government.

Thus, despite democratic elections, Members of the Knesset and those who become  Cabinet ministers are not individually elected by and accountable to the voters in constituency elections. Elected Israeli politicians can ignore public opinion with impunity – and do so even on matters involving the borders of the country.

Professor Eidelberg explains in detail how the existing democracy functions and  a states that Israel’s structure of governance oscillates between prime minister and judicial despotism.[Hence the title of one his books is “The Myth of Israeli Democracy”].

He concludes with “Intellectual and political stagnation prevail. New parties arise in Israel, but are led by mediocrities who dither about ‘vision’. It were as if Israel needs nothing more than a good ophthalmologist.”

Professor Alan Dershowitz is a lifelong member of the Democrat Party and yet sufficiently ethical to differ with the positions of the party on several occasions. On  Mr. 16, 2023, he declared, “Judicial reforms don’t threaten democracy. Even if all the proposed reforms were enacted, they would simply align Israel with Canada, New Zealand, or Australia.—-In some respects, it would make Israel more democratic.”

Moshe Koppel on Dec. 2014 authored, “Israel’s Imperious Judiciary.” – “A madly intrusive justice system is one of the most potent threats the country faces. Can it be stopped?”

He speaks of the threat of the most unlikeliest of quarters: Israel’s own hyperactive justice system.

Olmert was stunned when Israel’s attorney-general, whose position entailed defending state agencies in court, not only refused to defend the ministry — -his client, but sent a state attorney to undermine its case.

Koppel response extends to 3 items, The Limits of Judicial Review, Judicial Overreach and Why Reform is Difficult. Speaking to the 1st, he explains that one of the foundations of republican government is the principle of checks and balances, with different branches of government serving to constrain the power of others.

For the 1st three decades of Israel’s history, its courts —as is the practice in all democratic legal systems—-avoided judging the substance of administrative actions and intervened only when a government agency exceeded its legal authority.

In 1953, the  Knesset misguidedly passed a law allowing judges themselves to play the dominant role in determining judicial appointments. Predictably, however, the effect of that system, unique among democracies, was that slowly but inexorably, the Supreme Court became ideologically homogeneous, thereby rendering its long record of judicial prudence, vulnerable to dramatic reversal.

The major catalyst in this reversal was Aharon Barak, who from 1975 to 1978 became Israel’s attorney general and then in 1995, became Chief Justice. Of two revolutionary actions, the 2nd, more insidious, he empowered  a judicial bureaucratic complex to sever policies in the bud, before they could even reach the courts!

In the case of Judicial Overreach, regarding intervention in security matters, Michael 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.”

The Supreme Court’s stunning extension of its own authority had been noted by observers in Israel and abroad. Among American experts, both Robert Bork [“Barak’s Rule, Azure, Winter 2007] and Richard Posner [“Enlightened Despot”, the New Republic, April 23, 2007] would  write scathing reviews of Aharon Barak’s 2006 book, “The Judge in a Democracy”. “Less publicized outside of Israel ,but significantly more damaging in its day-to-day consequences , was the court’s empowerment  of proxies to expand its own executive branches.

The machinations of the legal bureaucracy embedded in ministers and other agencies of government, included under Barak’s 2nd revolution,—- took place behind closed doors, preventing cases from even reaching court; the chilling effect is consummate.

Under “Why Reform is Difficult “Moshe Koppel states “Israel’s justice is in desperate need of reforms that can end this tyranny of the legal bureaucracy.”The courage to advance reform s becomes—–for a politician, a party, or a movement—an advantage rather than a liability. He asks, “Who is up to the challenge? That is the question of the hour.”

Evelyn Gordon is a commentator and former legal affairs  and former legal affairs reporter. She is highly regarded in the field of constitution and democracy laws. Her most recent article ,”Israel’s Judicial Reckoning” was published on March 6, 2023.

Gordon provides  a detailed account of the various laws and their origin. She also exhibits confidence in a give and take resolution  Her closing paragraph reads as follows.

“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.”

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.