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Israel’s Dictatorship Of The Judiciary

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Much of the Israeli Left – including cultural and political leaders, journalists and academics – has in recent months engaged in hyperbolic, defamatory claims that the government of Benjamin Netanyahu is trying to destroy Israel’s democracy through proposed legislation such as that aimed at modifying how Israeli Supreme Court justices are selected.

In fact, those arguments set truth on its head. Israel’s Supreme Court, and its judiciary more broadly, are the most anti-democratic elements of Israel’s governing bodies and perhaps the most anti-democratic court system in the Western democracies.

It was not some right-wing extremist who wrote in 2000, “I think that [then] Supreme Court President Aharon Barak has not, and does not, accept the rightful place that the court should have among the various authorities in our regime.… [Instead, he is seeking] to interject [into all areas of Israeli life] certain moral values as he deems appropriate. And this amounts to a kind of judicial dictatorship that I find completely inappropriate.” The words were those of former Supreme Court president Moshe Landau.

Barak’s appropriating to himself and his court extraordinary powers unique within Western democracies is illustrated by, for example, his declaring in 1992 that the new Basic Law established that same year conferred upon the Supreme Court the right to strike down any legislation it considers “unconstitutional.”

Israel has no formal constitution, meaning that Barak was essentially claiming for the Supreme Court the right to nullify any law it deems in violation of its own concept – more particularly, his own concept – of a proper Israeli constitution.

Barak proceeded to legislate from the bench under this appropriated power, and did so with a distinct leftist bias, very much in the post-Zionist mold then becoming the dominant fashion on Israel’s Left.

One illustration of this was his instructing Israeli jurists, in his Interpretation in Law (1994), that when confronted by what seems to them a conflict between “democratic” and particularist Jewish values, the judge “should act as the enlightened community would.” Barak then explains: “The metaphor of the ‘enlightened community’ focuses one’s attention on a part of the public. One’s attention is turned…to the educated and progressive part within it. What distinguished the enlightened community from the rest of the public?.… The enlightened community represents that community whose values are universalistic, and which is part of the family of enlightened nations.”

In effect – even putting aside the boldly elitist, anti-democratic thrust of the assertion that the views of only a particular segment of the population should shape legal interpretations – Barak is instructing jurists to be guided in their rulings by those Israelis who embrace the post-Zionist agenda and are eager to strip the nation and its institutions of all Jewish particularist meaning and content.

It is because of this leftist bias that any challenging of the Supreme Court’s abuse of democratic norms has outraged the Left and elicited twisted assertions of being an assault on democracy rather than an effort to rein in the judiciary’s overreaching.

Of course, whatever had been the Barak court’s particular political predilections, its arrogation of extraordinary powers to itself would have been equally anti-democratic, reprehensible and dangerous.

* * * * *

Barak’s successor, Dorit Beinisch, who just stepped down as Supreme Court president, shared Barak’s political views and his vision of the special powers of the Supreme Court. This is illustrated by, for example, her rulings last year relating to Peace Now activities in the West Bank.

Peace Now emerged in the late 1970s promoting the delusional claim that peace could be attained by Israel’s withdrawing, for all intents and purposes, to the pre-1967 armistice lines. Over the next decade and a half the organization drew many adherents among Israelis eager for peace and willing to embrace the fantasy that the source of the ongoing conflict with the Arab world was Israel’s presence in the territories. Peace Now and its followers provided the primary impetus to the Oslo debacle.

Even the unprecedented spike in terror that accompanied the initial years of the Oslo process did not awaken from its wishful reveries that half of Israel that supported Oslo. However, the terror war launched by Arafat in 2000, which claimed about 1,000 Israeli lives over the ensuing few years and horribly maimed thousands more, did rouse many from their delusions. Still others were led to rethink their fantasies by the rocket, mortar and missile assaults that have followed on the unilateral withdrawal from Gaza.

The great majority of Israelis now agree with the necessity of the nation’s retaining defensible borders and are supportive of settlements in strategically vital areas, and Peace Now’s following has dramatically diminished. One response by the true believers in the peace camp has been to shift their attack on the settlements from emphasis on their being obstacles to peace to claims of their having been built largely on privately owned Palestinian land – rather than exclusively on public, or state, land or Jewish-owned tracts – and are therefore illegal.

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