There is more than meets the eye – Judicial Reform

So much has been said and so much has been retorted, but a story is never clear cut. There are several facets and nuances to it. The furor and the protests have taken a life of their own, and as an outsider my understanding is based on days in research and trying to determine what is hype and what is truth. In today’s ratings world, mainstream media can turn the pendulum of public opinion on a dime just with a headline. Most never read below the headline. The lack of historic transparency and intentional polarization has rendered any sensible dialogue or debate futile. Both sides of the coin accuse each other of nefarious intentions while the populace is instigated and riled up in a frenzy to take sides and not to either debate or compromise. The “with us or against us” attitude splits countries apart for the good of no one except political activists and politicians. Israel has been thrust into a black hole of disorder without an end in sight. Going on a limb, I would say that the protests have now morphed into an all-out anti-government campaign with little to do with judicial reform. I firmly doubt that if the Netanyahu government were to give up and declare the reforms null and void, it would not make one iota of difference to the opposition.  Too much money has been spent and too much rhetoric has been spouted.

A protest that started at grassroots level with a handful of demonstrators, has morphed into concert-like grandeur stature akin to a Rolling Stones event. Professionally printed banners, flags, transportation, shirts, stages with state-of-the-art sound systems can hardly be assumed as being funded solely by activists. As Jerry Maguire would say: follow the money.

Quoting Professor Tamar Herman of Sociology at the Israel Democratic Institute: “A protest movement cannot break out of its embryonic stage without money behind it.” (The Limited Times, 23 February 2023). Extrapolating on that statement, despite attempts by leaders of these protests to claim spontaneity, big money and big business is behind the well-organized protest machine.

According to The Limited Times (TLT), “breaktiv” a platform for crowd funding monitoring, as of February 21, 2023, more than NIS 10 million (approx. $4 million) had been raised in funding the protests. A small portion came from the public (approx. 8,000 supporters) in donations and contributions, NIS 1,934,355 (approx. $530K). The majority came from Israeli and foreign businessmen, the high-tech industry, and various organizations.

In an interview with TLT, Professor Herman implied that the professional organization of these protests denotes a great deal of money behind it. The professional printing of giant posters, t-shirts, and signs, also the presence of large tents, all identical at all venues cost millions. A disconcerting quote from him: “…there are international parties that participate in these protests behind the scenes, without leaving a fingerprint.” Although foreign governments cannot and should not interfere in the affairs of another country, a private citizen can donate privately to a cause. It is neither illegal nor wrong.

The New Israel Fund, (NIF) a DC based progressive organization, tax exempt in the US, and with the ultimate goal of “reforming” or doing away with the “ultra-orthodox monopoly on religious life”, has a strong foothold in Israel. In the past NIF appealed the Judiciary Court against what they considered to be “human rights” infringements, mostly against Haredi Jews, in an attempt to strengthen Israel’s “liberal democracy”. Their website promotes “pluralism and freedom” and an open liberal agenda. Millions are “donated” supporting  “social change” political social activism. According to Jerome Marcus of the Jewish News Syndicate, (JNS) the NIF is one of the monetary contributors toward the protests. (February 23, 2023) The NIF had no problem admitting to the contributions and actually gave a breakdown of them. (The Limited Times. 02/23/2023).

Why should anyone care about where the money comes from? Because the intent behind the donations becomes transparent, and governments should not be funding protests in foreign countries especially against democratically elected legislatures. It’s taxpayers’ money. Taxpayers have the right to know where their money is being spent and why. Which makes the Movement for Quality Government (MQG) involvement in Israel more questionable than the NIF.

The Movement for Quality Government or MQG is a US State Department funded organization based in Israel allegedly to “teach” democracy in Israeli schools. This is a US government taxpayer funded organization. Gabe Kaminsky, an investigative reporter for the Washington Examiner traced funding for MQG since 2020 at $38,000. Although a drop in a bucket in today’s world, funding for MQG should not include involvement in foreign protests. Gerald Steinberg, politics professor at Israel’s Bar Ilan University, and president of an NGO watchdog group, has alleged that in the past MQG used the Israeli High Court open-door policy to go after the Netanyahu government. Prominent Israeli journalist Caroline Click also reported that hard-core protest leaders who called for “…insurgency, civil war, and often violence…” on stage, stood under prominent MQG banners. She disconcertingly noted: “nobody is asking where the money is coming from.”

MQG’s questionable activities in Israel didn’t start now. MQG has been around since 1990. But in 2020 it registered with FARA (Foreign Agents Registration Act) and the Trump administration started funding it. In the meantime, MQG used its FARA status to hire Washington DC based lawyers and go after various agencies, this included an accusation that Netanyahu had his laundry washed for free by the Trump administration! It was so bizarre that the Netanyahu campaign included it in its re-election bid as comedy relief.

The 1992 Basic Laws were supposed to have given Israel a pseudo constitution of 13 laws. Israel’s system resembles mostly that of Britain with a multiparty parliamentary system (Knesset) and a formally unwritten constitution. In the wake of the Basic Laws, then Supreme Court Justice Aharon Barak declared a “constitutional revolution” which eventually gave the High Court carte blanche to make decisions invoking the “reasonability” opinion. A nebulous blueprint for decision making.

By 1996, the Supreme Court gathered more power and increased its involvement in the daily governance of the country. It went on a “justice” binge forcing ministers it didn’t approve to resign, overturning Knesset legislation, and getting involved in rulings outside its purview of justice. Among some of its most famous decisions was the overturning of the government’s ban on import of non-kosher meat, overturning the Attorney General’s decision to try some public figures for corruption, and the most bizarre: overturning the Israel Prize Committee’s choice of prize recipient. By this time, the overreach of the court’s hand went beyond politics and into trivial and controversial.

In August 1996, two Haredi newspapers (Yated Ne’eman, Kol Hashavua) blasted the court and its president Aharon Barak for interfering in matters outside its purview. This was in relation to the Bar-Ilan Street controversary in Jerusalem, where the municipality wanted the predominant Haredi neighborhood street closed on Shabbat, a not so unusual occurrence in other predominant religious neighborhoods. The request was challenged by Labor and Secular activists (Ophir Pines & Yossi Sarid, respectively) and the court ruled that the road remains open, citing it being a main artery. For information’s sake, until secular and non-religious neighborhoods started sprouting north of Bar-Ilan, the street was no more than a narrow alleyway. But I digress. The two papers went into battle after the court’s decision in scathing editorials accusing the court of activism which was “dangerous” to Judaism and democracy. Language was colorful and often personal especially against Aharon Barak, who was allegedly behind the denial.

The papers were denounced by Israel’s political platforms from both sides of the aisle to include a certain Bibi Netanyahu, and complaints were eventually filed against the papers and the editors, going as far as demanding the closure of the papers and removal of the editors. The papers were accused of incitement, defamation, and sedition. The papers remained adamant and in November of the same year, one of the papers Yated Ne’eman, interviewed Dror Hoter-Yishai, chairman of Israel Bar Association. Dror did not have kind words for the court either, he accused the court of interfering in provincial matters rather than concentrating on laws. He also stated that a court’s role is not to pass judgement but to uphold the law, otherwise judges will rule with their personal opinion of what is right rather than what is legal. The court should determine rulings according to legislature and in respect to the law not personal interpretation of reason.

Calls for Dror Hoter-Yishai’s removal from his chairmanship of the Bar Association, and his position on the government committee that appoints judges were as vicious as those demanded of the newspapers and their editors. He was brought in front of the Bar Ethics Committee and demands were made for him to face disciplinary actions. Eventually he was forced to resign from all his positions.

In an eight-page 1998 report (Is it Legitimate to Criticize the Supreme Court?), Evelyn Gordon senior editor of Azureonline, a global think tank that takes on politics, law, culture, philosophy, and economics in an attempt to determine commonality, outlined the various layers of convolution and erosion that has gradually rendered the Supreme Court increasingly activist. The erosion of the two self-imposed procedural safeguards, standing and justiciability, kept the court from hearing controversial and often irrelevant cases. These two procedural safeguards limited the eligibility of petitions to those directly affected by the outcome and determined if a “determination or question” could be feasibly settled by a court action. However, these safeguards were gradually eased in the early 1980’s which expanded the number of cases that the court heard and inadvertently initiated the “reasonability” element to the rulings. With these erosions started the inconsistency in rulings and opinion crept into the judicial dialogue until eventually, any safeguards in place were completely gone.

Unlike Israel, the US has a constitution. But in recent years, the US Supreme Court also turned into an activist court by ruling on the court’s opinion of rights rather than the Constitution. Roe v Wade is a good example where the Supreme Court actually legislated a law outside its purview of the Constitution. The law was passed as a “right to privacy” which unlike other freedoms such as speech and religion, has no constitutional “protection”.  Eventually, the Supreme Court was ruling on morality from abortion to assisted suicide, which constitutional scholars argue that should have been left to the legislature or individual states. Hence, the reversal of Roe v Wade corrected the unconstitutional decision by giving the legislative decision to the individual states and their electorate. A bone of contention which Chief Justice Ruth Bader Ginsberg always had with Roe v Wade. She did not agree with the way it was decided under “right to privacy” which could be challenged, but had it been decided under the Equality Protection Act it would have rendered it less susceptible to challenges and made it constitutionally viable. Such are outcomes of Supreme Courts who rule outside the legislative bodies.

David Weinberg of Israel Hayom (01/17/2023) scathingly cut through the mist of misinformation on the judicial reforms. The Supreme Court through the years has established itself above the elected government and created authoritarianism that self-replicates “with impunity” and usurps powers that were never intended by the “country’s founders or parliamentarians”. It has become an authoritarian body that through “fluid jargon” like reasonableness, equality, and balance, can broadly interpret any justification to their rulings. They have systematically been allowed to “socially re-engineer” Israeli society to their perceived image or political leanings.  Several examples of overreach assess the power of the court sans safeguards. The Bar Ilan Street closure still resonates of a court decision against the will of the majority of the people. It’s ruling that Jews praying on Temple Mount is “unreasonable” because it disturbs the Arabs and police protection is required, remains unfathomable. The list of inanities is endless, yet thousands are in the streets protesting in favor of a judicial body that not only stifles their basic freedoms, but that of their democratically elective body.

When in 1857 the US Supreme Court prohibited Congress from outlawing slavery in the Western territories, the Republicans and abolitionists were outraged, and Abraham Lincoln made it an election issue. He was elected in 1860, and in his 1861 inaugural address he made sure to insert a reprimand to the Supreme Court, saying that when an elected government and its legislation is thwarted by the decisions of the Supreme Court, then the government is no longer of the people but of the elite few. This is the crux of the judicial reform in Israel. A choice between decisions made by the law of the land or by a few opinionated elites.

Abraham Lincoln was wise, and his words echo with fortitude and truth that few paid heeds to. They are as relevant now as they were in 1861. A court should be the ultimate upholder of the law not the erosion of it. Let’s hope that both sides will sit down and do what is good for Israel and not their party or special interests.

“A house divided against itself, cannot stand.” (Abraham Lincoln, Gettysburg address June 1858)

2/23/2023. The Limited Times: Where are the millions coming from for the protests against the legal reform? | Israel today – The Limited Times (newsrnd.com)

08/04/2022. Victory for Religious Pluralism | New Israel Fund (NIF)

Marcus, J. 02/23/2023 Israel’s Supreme Court debate: Let’s start with the facts – JNS.org

Kaminsky, G. 03/06/2023 State Department funds left-wing group behind protests against Israeli prime minister | Washington Examiner

3/27/2021. “When the justice system wants to come to terms with a person, it does not resort to means” Israel today – The Limited Times (newsrnd.com)

Gordon, E. 1998 Is It Legitimate to Criticize the Supreme Court? : Azure – Ideas for the Jewish Nation

Weinberg. M. D 01/17/2023 Judicial reform is reasonable and right – www.israelhayom.com

About NIF | New Israel Fund (NIF)

Gupta, A. H. September 21, 2020. Why Ruth Bader Ginsburg Wasn’t All That Fond of Roe v. Wade – The New York Times (nytimes.com)