Monday, September 8, 2008

Castrating the Israeli Supreme Court

How many times have you heard this line: Look, I admit that there are problems with Israeli democracy, e.g., its treatment of its Arab citizens, and the Occupation. But the country is still at war with the Arabs, and in time, things will improve. After all, once the Arab citizens were under a military government. Now, at least de jure, they are equal citizens. Any restriction of civil liberties are temporary measures. As for the Occupation, when peace comes, it will cease to exist. And in the meantime, the Israeli judiciary is there to protect civil liberties.

That sentiment, of course, forms an essential part of the faith of the Zionist liberal. For thirty years, I never questioned it.

But what if the reverse is true -- what if there is a slow deterioration of civil liberties and the rule of law, both within Israel proper and in the Occupied Territories? And what if these civil liberties are being curtailed, not during a period of relative stress, but during a period of relative calm, like the present?

What does the Zionist liberal then say about the prospects for Israel's future?

On Sunday, the Israeli government approved Justice Minister Daniel Friemann's proposal to amend the Basic Law on the Judiciary in order to curtail the Supreme Court's power. Read about it here. Specifically, the Supreme Court would not be able to strike down any law that does not violate two Basic Laws (human dignity and freedom, and freedom of occupation) and when those two laws are violated, the court's decision could be overridden by a simple majority in Knesset. For example, if a majority of Knesset members voted on legislation banning Arabs from public beaches in Israel, the court could strike that law down -- only to see it overrruled by a simple majority of the Knesset. And if the Knesset passed a law barring Palestinians from seeking monetary compensation for damages done by the IDF, the High Court could not even intervene, as it does now.

In other words, the Israel government's decision, if it becomes law, will castrate the Israeli judiciary system and remove the only bulwark of civil and human rights in Israel.

Note that this decision was made at the calmest time in Israel in recent memory. The Second Intifada is dead, and no rocket falls on Sederot. By this decision the Israeli government says that in order to survive as a Jewish state, it cannot be a real democracy, but rather a banana republic, where the judiciary has little teeth and no independence.

Of course, Daniel Friedmann also wants to politicize the process of the selection of judges. He hasn't been able to do that yet, but he will. The independent judiciary that Alan Dershowitz praised so highly in his Case for Israel (and with little justification, as Norman Finkelstein pointed out) will be a thing of the past.

I don't believe in historical inevitability. But we are witnessing the continuing evolution of Israel away from whatever democratic roots it had, and, in my view, the seeds of this evolution are right there in the state founded in 1948. Note that this decision was not made by a rightwing government, but by a centrist government.

And that is the silver lining. For in decisions like these Israel unmasks itself. It cannot appear as a virtual democracy, with a court upholding the virtual rights of West Bank Palestinians, a court that always opts for the security of the occupier over that of the occupied. Better that the sham so admired by Dershowitz, and so trumpeted by the Israeli foreign ministry, be exposed for what it really is.

Yet for those, like the present writer, who care about Israel and who still find it painful when the truth of Zionism is exposed, the government's decision hurts.

Illusions die hard.


Anonymous said...

Could you explain what "politicization of the selection process" for Supreme Court Justices is? You mean it is NOT "potlicized" at this point in time? It is just a coincidence that almost all Justices support the Left and far Left? Why shouldn't the political echelons, i.e. the elected representatives of the people have a say who in their justices are? Is there really a truly "neutral" or "non-political" way to choose justices? Is having Justices with the views you like "non-political" but having Justices with views of the "Right" to be considered "politicization" of the Court? In the US, doesn't the President appoint the Justices with the approval of the Senate?
Why are the American people allowed a say in who judges them, but not the Israeli people?

This is typical of the attitude of the Left in Israel...the people and their elected representatives are ignorant rabble, and they must not have any say in how the Justices are chosen. Why not scrap elections altogether and have an appointed Leftist elite run the country for life? Why should this ignorant rabble have any say in how the country is run?

Jerry Haber said...

Elyakim Rubenstein a leftwinger? Oh, I am sorry, I thought you said, "all", you said, "almost all".

"Why shouldn't the political echelons have a say?" My friend, they have more than a "say", they have votes on the nominating committee. The issue is why shouldn't the judiciary have a say? The system of nominating justices is superior to that of the United States, which has been extremely politicized.

Y. Ben David, I don't see you calling for people electing on rabbis, doctors, or lawyers. I am always amazed by those rightwing religious Jews (you may not be one) who call for the Israeli Supreme Court to be more representative of the people, and yet claim that rabbinical judges should not be more representative of the people. More orthodox hypocrisy?

From Sharon Shenhav in Jewish Political Studies Review 18:3-4 (Fall 2006)

"In 1955, the Knesset set out the method by which dayanim were to be selected,[3] providing that they were to be appointed by the president of Israel based on the recommendation of the Commission to Appoint Religious Court Judges. The legislation further stipulated that the commission would be composed of ten members: the two chief rabbis (Sephardic and Ashkenazi), two dayanim from the Rabbinical Court of Appeals, the religious affairs minister and another minister, two members of Knesset, and two practicing lawyers representing the Israel Bar Association.

Traditionally, members of the commission have been religiously observant men from the Orthodox community. Candidates for appointment as dayanim must be ordained Orthodox rabbis who have been examined and certified by the Council of the Chief Rabbinate. Secular and religious critics claim that the commission has operated as an "old boys' club" and that dayanim are usually appointed on the basis of their allegiance or family ties to Ashkenazi or Sephardi religious leaders."

From Wikipedia:

"Supreme Court Justices, as well as all other judges, are appointed by the President of the State upon the nomination of "the Judges' Nominations Committee". The Nominations Committee is composed of nine members: three Justices of the Supreme Court (including the President of the Court among them), two Ministers (one of them being the Minister of Justice), two Members of the Knesset and two representatives of the Israel Bar Association. The Minister of Justice is the chairperson of the Committee. In other words, a modified Missouri Plan.

The three organs of state—the legislative, executive, and judicial branches of government—as well as the bar association are represented in the Judges’ Nominations Committee. Thus, the shaping of the judicial body, through the manner of judicial appointment, is carried out by all the authorities together."

Anonymous said...

You are well aware of what everyone else is aware of, all the Justices chosen are vetted by the sitting Supreme Court justices. No one has been approved, at least in recent years (I don't know about the distant past) without Aharon Barak's approval. The approval of the other on the committee was a formality. Two Justice Minsters who tried to block this system were harrassed by prosecution for non-existent (Yaakov Ne'eman who was acquitted on all charges) or minor (Haim Ramon who gave a girl an unwanted kiss) crimes. This is the behavior of a police state. Peron pulled tricks like this in Argentina. Israel is no better than that?

Excuse me, but please do not attribute views to me regarding the Rabbinical courts or other such bodies that I have not expressly stated.

Anonymous said...

Regarding this statement...
"the seeds of this evolution are right there in the state founded in 1948"

Could you elaborate? (if you have not already done so). This is in no way a sarcastic question; I am trying to understand what you mean.