The Blogs: The Age of Uncertainty Continues

On Dec. 5, 2016, Evelyn Gordon’s well crafted, “Disorder in the Court” emerged. As an expert commentator and well-known legal affairs reporter, her titled column, serves the purpose in attempts to unravel the scene in Israel today. This despite its age. To facilitate comprehension in this lengthy discourse, Gordon has discrete sections, as follows:

[1] The court transforms itself. [2 The Revolution begins slowly. [3] Personnel is Policy and the court controls Personnel. [4] The court selects its Own Members. [5]Subverting the Rule of Law.[6] Eviscerating Israel’s Dual Character.

Gordon mostly makes use of Daniel Friedman’s,” The Purse and the Sword”, whereas, in her final paragraphs, she references Menachem Mautner’s 2011 book, “Law and the Culture of Israel.”

In 2015, Obama concluded an executive agreement marking the accomplishment of a cherished policy goal: the nuclear deal with Iran, known as the JCPOA. After similarly lengthy negotiations, Prime Minister Benjamin Netanyahu concluded an agreement realizing a long desired policy of his own: a deal enabling development of Israel’s largest natural gas field by a private American company and its Israeli partner.

Despite acceptance in each case, what about the other branch of government i.e. the judiciary? The Iran deal was never challenged in an American court. But in Israel, two left-wing opposition parties [Zionist Union and Meretz] and two non government organizations, alarmed by the encroaching specter of capitalist development, immediately petitioned the country’s Supreme Court [also known for some purposes as the High Court of Justice] over the gas deal – and won. The court struck down the agreement, saying the government either had to procure legislation enacting the prime minister’s commitment to regulatory stability or renegotiate the deal to exclude the commitment altogether.

Gordon responded by noting that through its revolutionary actions, Israel’s Supreme Court “presumed to become a constitutional court in a country that lacks a constitution. The Supreme Court had gutted the ability of any elected government to govern and ended up undermining , rather than protecting both human rights and the rule of law.

If overturning government decisions on the basis of its own radically expansive criteria was one tool through which the court had usurped political power , another was control over government appointments.

Further, the court had “discovered” several rights in an Israeli Basic Law that the Knesset intentionally excluded under the political compromises excluded under the political compromises that enabled its passage.

In most democracies, Supreme Court Justices are chosen by the elected branches of government; in Israel, they are chosen in part by the sitting justices themselves.

Former Israeli Supreme Court Judge Aharon Barak is the father of the mess the country finds itself in today. Professor Paul Eidelberg in his, “The Enemy Within” explains Barak’s behavior as such. He reminds us of the day when Barak delivered a speech at Haifa University where he declared that the term Jewish and democratic is not a contradiction, but rather a completion.

Apparently Barak was unaware that Spinoza, who rejected Judaism, is the father of liberal democracy. Strange that such a philosopher, famous for his logical acumen, should have seen contradictions between Judaism and democracy, where no such contradictions exist.

“Political scientists define democracy as a process—-by which individuals pursue their private and lifestyles.” In consequence thereof, democracy does not entail any particular ethnic or religious character.”

Eidelberg considers Judge Barak’s view of democracy to be devoid of moral law, and many of his decisions violate the cherished beliefs and values of most Jews in Israel. A number 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 of Judaism.”

“Aharon Barak’s Revolution” by Hillel Neuer , a publication of Azure, surfaced during Winter, 1998. It is both extremely in-depth, lengthy and of the highest quality.

Its introduction: “With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli Judiciary has expanded dramatically to include the ability to strike down Knesset legislation that in the Supreme Court’s opinion violates normative human rights guarantees.”

With the sudden appearance of the 1992 statutes, overtly welcomed by an activist court, meant that for the 1st time the judiciary could anchor its protection of rights in the solid ground of black-letter law which, it had taken great pains to show, is also constitutional in nature.

Leading the charge of this judicial vanguard was Aharon Barak, a Supreme Court justice since 1973 and the court’s president since 1995. Prior to the 1992 Basic Laws, Barak consistently—- and successfully challenged the traditional legal doctrines limiting the court’s purview and encouraged the court’s intercession in an ever-growing range of issues.

The problem which has manifested itself, as a series of less than civilized individuals releasing their anger on the streets of Israel, is simply because they lack the knowledge of the historical record of Israel’s poorly functioning government. Neuer condenses the subject, as follows.

The Supreme Court’s unprecedented power to shape the ideological debate in Israel, demands a closer look at Aharon Barak’s judicial worldview, and in particular his views on the role of the court in a democratic society and on the new Basic Law provisions enshrining the values of Israel as a “Jewish and democratic state.

Hillel Neuer sums up, with Aharon Barak rejoicing over the new Basic Laws, waving his “nonconventional” weapon of judicial review which, together with a hefty conventional arsenal of wide-open standing and justifiability rules, threatening the Israeli public with an unprecedented centralization of power among a handful of like-minded judges.

As President Barak himself has written, there is a zone where “the decision is made according to the personal worldview of the judge—-and his outlook on society, law, judging and life is what directs his path—Israelis may have a good cause for concern in discovering that this subjective zone and with it the politicization of the court is likely to grow apace, an inevitable result of the Barak approach. ”

In Evelyn Gordon’s Winter 1998 essay, “Is it Legitimate to criticize the Supreme Court?”, she mainly discusses Aharon Barak’s Revolution with a convenient answer in her concluding paragraph

She was of the opinion that Israel had reached the stage where it could ill afford to stifle the judicial activism debate. And yet, in the past year, Israel’s leading public figures demonstrated an eagerness to do just that. , or whether such vital questions the topic had finally been broached, and the nation found itself at a crossroads., compelled to decide whether the values underlying the laws of the land would continue to be decided by a small group of unelected judges or whether such vital questions would be returned to the public forum.

Few decisions would be more fateful in determining the shape of the country over the coming decades. If the so-called “champions of democracy”, succeed in obstructing the judicial reforms, democratic rule will be replaced by mob rule.

Martin Sherman in his ,”Obviating Elections” posted by the Jewish Press of March 23, , 2023, includes an interesting piece on Opposition Leader Yair Lapid.

Arguably, the most brazen, blatant display of barefaced double standards behind the anti-reform demonstrators is that of Lapid. On February 27, 2023, during a plenary debate on judicial reform, Lapid railed: “Stop this insane legislation.” Had his memory failed him?

Since in a 2016 address to Kohelet Policy Forum, the organization that played a pivotal role in the formulation of the proposed judicial reforms, Lapid “laid out” his views on the legal system, which mirrored almost identical measures to those in reforms put forward to today’s coalition.

” I have opposed, and I still oppose, judicial activism of the sort introduced by former Supreme Court President Justice Aharon Barak. I don’t think it is right that everything is justiciable. I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as judgment of the ‘reasonable person. ‘

That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code.. It’s not the right in my mind that the separation of powers, the sacrosanct foundation of the democratic method, should be breached by one branch of government placing itself above the others.”

Israel National News, published Professor Paul Eidelberg’s “Israeli Democracy” on August 15, 2013.

In the body of this paper, we are reminded that 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.

Is it any wonder that so many citizens feel powerless to affect government actions such as preventing the freeing of terrorists. Elected Israeli politicians can ignore public opinion with impunity—-and do so, even on matters involving the borders of the country.

As an example, despite the fact that an overwhelming majority of the voters in the January 2003 elections, rejected Sharon’s “unilateral disengagement” policy, this did not deter him.

A situation in which public value decisions are taken by jurists and not elected officials is one that violates basic democratic principles of majority rule and individual’s ability to influence policy through choosing elected officials.

Gordon mostly makes use of Daniel Friedman’s,” The Purse and the Sword”, whereas in her final paragraphs, she references Menachem Mautner’s 2011 book, “Law and the Culture of Israel.”