Alex Rose

Justice Denied or Impaired

“The fundamental basis of nation’s laws was given to Moses on the mount – if we don’t have a proper fundamental moral background, we will finally end up with a totalitarian government, which does not believe in rights for anybody except the state.” [Harry Truman]

“The only thing new in the world is the history you do not know.” [Harry Truman]

“Show me a man that gets rich by being a politician and I’ll show you a crook.” [Harry Truman]

What doesn’t the opposition understand about the proposed judiciary reforms? According to the Wall Street Journal, “Israel’s proposed judicial reforms aren’t ‘extreme’. They’ll provide a necessary check on a court with nearly unlimited power to dictate economic and political life.”

Why does Israel not have a Constitution? This was specifically stipulated in UN resolution 181; and in Israel’s Declaration of Independence, it was said that it would establish a democratic Constitution. The Knesset declined to act on its Constitutive Authority for several reasons. One argument suggested that “most of the Jewish people are not in Israel yet”!

Israel was built on the legacy of English common law and the British system. Hence there was a thought among some citizens that, like the UK, a Constitution was not necessary, as Israel had already attained democracy status. In particular, concerns about disunity in particular, centered on the religious and secular cleavage.

The Harari resolution of 1950 was to “legislate a set of Basic Laws which would eventually be incorporated into a Constitution. From 1958 to 1992, Basic Laws were introduced, “dealing with the structure of government, covering the prime minister, the government, the Knesset, the president, the budget, etc.”Most of the Basic Laws can be revised by a regular parliamentary majority.”

Progress occurred in the 1990s with the enactment of the two Basic Laws on human rights, Basic Law: Human Dignity and Freedom; and Basic Law: Freedom of Occupation, limiting the Knesset’s own powers. This manifested itself into the problem at hand since the Supreme Court has become too active and unacceptable to the present day government.

The newly proposed reforms are intended to legislate the disuse of the “reasonableness” clause, the selection of judges, increase the number of politicians represented on the selection committee to a majority. The matter of judicial review, introduced as the unguided constitutional process, is a major part of the reforms. Former Supreme Court president Aharon Barak’s claim that there is a constitution was built on a hollow foundation, a big lie.

This brings us back to the original question on the value of a Constitution. Fact is that it has worked very well in the US, while the UK apparently has not suffered without it. We need therefore to look elsewhere for a resolution.

The present day agitation is about the proposed Supreme Court – Knesset actions. An example is the case of Lara Alqasem, where the Court surprisingly decided on reversing the decision of the government and two lower courts to deport her. At the time [2018], she was a leader for Students Justice in Palestine, a rabidly antisemitic American BDS organization, or the whole hearted supporter of Hebrew University, where she was hoping to study——-and allowed her to remain in Israel.

This woman was no ordinary criminal. SJP is no ordinary organization. Its major interest includes “freeing Palestine” and their old slogan, “From the river to the sea, Palestine will be free.”

From a reliable Evelyn Gordon report, “Former Supreme Court President Aharon Barak —declared that giving the public’s elected representatives control over Supreme Court appointments 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 the executive and/or legislative branches. Only in Israel are justices instead chosen primarily by unelected legal officials. [Israel’s 9-member Judicial Appointments Committee includes 3 sitting justices chosen by the Supreme Court itself and 2 layers 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.”

KPF states categorically, “The lack of checks on the Supreme Court’s powers lie at the root of the cause for judicial reform. Following on, “In truth, it is precisely Israel’s lack of Constitution, that necessitates the override clause. The Supreme Court’s overreach is felt in all fields of Israeli politics, from security, to immigration, foreign affairs, and religion.”

In Israel, the Supreme Court stands as the only check against government tyranny. It is precisely Israel’s lack of Constitution that necessitates the override clause. Comparing Israel to Canada on the subject of democracy makes for interesting study. In 1980, then Canadian PM, Pier-Elliot Trudeau began the extensive course of drafting a Constitution. The Parliament held a public consultation and heard close to 1,500 written and oral submissions. Finally, in 1982, the charter was passed with broad public support. Shortly after reviewing legislation based on charter rights, the Supreme Court became functional according to the new rules.

Contrast this with the supposed basis for constitutional review in Israel. The Human Dignity and Liberty Basic Law was passed in 1992 by a minority of Knesset members and was preceded by a very little public discussion or involvement. When the Basic Law was passed, Chief Justice Aharon Barak declared in the famous 1995 Mizrahi Decision that a “constitutional revolution had occurred and that the Court could now strike down laws!!

The difference between Israel and Canada is highly significant. Canada has many checks on its Supreme Court, which do not exist in Israel. In Canada, federal judges are appointed by the prime minister, in keeping with the overwhelming majority of democratic countries. In Israel, MKs are a minority of the selection committee, essentially giving the judges a veto over Supreme Court candidates. The differences extend to the attorney-general and several others.

In Israel, “everything is justiciable.” Israel is not Canada. Canada has a Constitution and balances its court through political control of judicial and adviser appointments. It also has a legal culture of restraint. In Israel, the Supreme Court is the architect and arbitrator of the Constitution. There are practically no institutional checks on the Supreme Court.

JNS: On April 23, 2021, Josh Hasten asked the question, “Among ongoing political deadlock is it time for Israel to consider electoral reform?” In setting out his beliefs, he includes the following:

“Yoram Ettinger, a former minister for congressional affairs at Israel’s embassy in Washington and an expert on US-Israel relations, told JNS that Israel’s political system ‘is a dysfunctional and self-destructive system from its inception. ’He then introduces a highly relevant item which has been addressed by neither the government nor the opposition

First and foremost, a better system is needed, which introduces accountability by members of the Knesset to their constituents. Right now, the Knesset members are accountable to their party leaders. The existing system disarms voters completely and renders them irrelevant between election campaigns.”

Ettinger envisions a system in which the country is divided into 120 geographical districts, where the public selects candidates, who will directly represent their interests in the Knesset. In other words, citizens would no longer be disenfranchised.

Israel’s parliamentary system produces weak governments that are increasingly liable to capture minority parties, who have every incentive to indulge their most radical plans.

Finally, the matter of ever-present hatred demands a sensible approach to its resolution. Rabbi Berel Wein reminds us of Maimonides wisdom in his words on hatred. “No emotion or character trait, except for humility and the avoidance of anger, should be taken to an extreme. Hatred breeds zealotry and zealotry invites and justifies violence and discord.—–Many times, this hatred of others is really a manifestation of narcissism and love of one’s self, which is not balanced and can lead to great emotional and practical difficulties.”

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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