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.
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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.
These claims are no less fraudulent than Peace Now’s earlier assertions that Israeli withdrawal was the key to Arab-Israeli peace.
For example, Peace Now declared that 85 percent of Ma’ale Adumim, the largest of Israel’s West Bank settlements, had been privately owned Palestinian land. When challenged with the relevant documentation, Peace Now amended its claim to 0.5 percent, acknowledging a 17,000 percent overstatement. Even this claim of 0.5 percent is highly dubious.
In another instance, Peace Now asserted that more than 70 percent of the settlement of Revava was built on privately owned Arab land. When challenged, it modified its claim to 22 percent. The settlement sued Peace Now, insisting that Revava was built entirely on state lands. The court ruled in favor of the settlement, and Peace Now and the two authors of its report on Revava had to pay a 20,000-shekel fine and publish a retraction of their false claim in major Israeli newspapers.
Peace Now enlisted Arab claimants and made similar claims of Arab ownership with regard to the West Bank community of Migron, established with the support of some government agencies and the opposition of others. Peace Now took its claim directly to the Supreme Court.
The court, under Beinisch, did not investigate the ownership issue but simply ruled in favor of the Peace Now stance and ordered the community destroyed. When the evacuation order was delayed in response to a government appeal, Peace Now promoted the filing of another lawsuit in a lower court for compensation to the Arab claimants for the years when they had no access to their alleged land. The lower court asked for evidence of ownership, at which point the claimants withdrew their suit.
But Beinisch went further than simply ruling in Peace Now’s favor without examining the claim of ownership. Last September, she effectively declared – in what might be called the Peace Now coup – that in most of the West Bank, when there is any Arab claim to land on which there has been Jewish construction, the burden will fall on the Jewish residents or Israeli authorities to prove the land is not Arab-owned, rather than on the claimant to provide evidence of ownership.
Beinisch has complained bitterly of efforts by politicians to “damage the Supreme Court, to reduce its powers, and prevent it from carrying out its functions, and thus to undermine its ability to protect the country’s democratic values.” She recently asked rhetorically whether those who want to alter the selection process for Supreme Court justices to one resembling the process in the United States, with Knesset members vetting candidates, “are also proposing to adopt the unchallengeable respect for the American Supreme Court’s decisions?”
But Beinisch’s characterization of the American Supreme Court is disingenuous. First, of course, the United States has a constitution, so there are definitive guidelines by which the court is to judge cases that come before it. American Supreme Court justices are not to be guided simply by what they believe should be in a constitution were the nation to have one.
In addition, U.S. Supreme Court decisions are not “unchallengeable.” Most notably, of course, there is a process for amending the constitution should legislators decide there is a need to counter court decisions via constitutional reform.
Moreover, American leaders have long recognized the threat to democracy posed by a Supreme Court claiming unchallengeable finality for its decisions, a status superseding other branches of government and transcending any system of governmental checks and balances. For example, Abraham Lincoln wrote that “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased, to be their own rulers…”
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The threat Lincoln envisioned was the reality that Moshe Landau recognized in the Israeli Supreme Court’s appropriation to itself of extraordinary powers beginning with the presidency of Aharon Barak.
The current selection process for Supreme Court judges and other judicial appointees, the process whose proposed reform has elicited such unbridled claims of threatening Israeli democracy, in fact effectively extends the anti-democratic predilections of the Supreme Court throughout the judiciary. It adds a structural dimension to those predilections, a dimension that reinforces and perpetuates them and assures their permeating the entire judicial system.
The present selection process, unlike that in other Western democracies, is largely under the control of sitting judges. This not only allows the Supreme Court, and the judiciary more broadly, to be self-perpetuating in ideology, it also stymies cultivation and articulation of alternative perspectives by anyone in Israel’s legal “food chain.” Everyone within the system is aware of the largely unchanging political biases of the judges they must deal with, and anyone who aspires to himself or herself some day to achieve appointment to the judiciary is inevitably pushed to be particularly accommodating of those biases.
Prosecutions in Israel have also been infected by this systemic bias, not uncommonly under the influence of the predilections of the judiciary with whom prosecutors must deal, as well as by the impact of prosecutors’ own aspirations to ultimately achieving a place within the judiciary.
Innumerable examples of prosecutorial bias can be cited. One that received much publicity at the time was the aggressive prosecutorial pursuit of Benjamin Netanyahu, after his first term as prime minister, for allegedly having engaged in illegal activities connected to contracting work done at his private residence while he was in office and also his allegedly having kept gifts received while in office that properly belonged to the state. In contrast, pursuit of then-President of Israel Ezer Weizman for allegedly having been given large payoffs to advance left-wing political goals – the amounts involved were considerably greater than those entailed in the allegations against Netanyahu – was much less vigorous.
The blatant political use of prosecutorial actions prompted Harvard law professor Alan Dershowitz, hardly a right-wing zealot, to address the matter in a letter to Haaretz back in August, 2000. Dershowitz noted “Israel’s long history of prosecuting, often unsuccessfully, some prominent public officials, while foregoing prosecution of others.” He went on: “Even those who want to see Benjamin Netanyahu prosecuted appear to acknowledge that if the same test that was applied to Ezer Weizman were to be applied to Netanyahu, there would be no prosecution.”
And he warned: “It would be discriminatory in the extreme to apply a less demanding evidentiary and prosecutorial standard for Netanyahu than has been applied to other political figures in the past.… Any less demanding standards would reasonably raise the specter of political partisanship and discrimination.”
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Again, there have been innumerable instances of such partisanship and discrimination, with prosecutors pursuing in prejudicial ways those on the political Right.
Thus, for example, in advance of the dismantling of the Jewish communities/settlements in Gaza, as well as four in the West Bank, in the summer of 2005, an entirely new and extraordinary body of prosecutorial procedures was created to deal with anti-evacuation demonstrators and resistors.
Among the novel guidelines was an order that cases brought against those accused of threatening a civil servant in the course of the expulsions “cannot be closed by the investigating unit because of lack of evidence or lack of public interest, but only with permission from the state prosecutor.”
In an April 2007 hearing for a senior reserve officer who had tried to resist his expulsion from Kfar Yam in Gaza, Judge Drora Beit-Or, deputy president of the Beersheba Magistrates Court, acknowledged, “We dealt differently with the cases from the Disengagement.… We [in Beersheba] dealt with many cases including minors and threats. Most of the defendants were first time offenders and all [cases] received special treatment.” This included the months-long imprisonment of young teenagers who had committed no crime and had no previous criminal record.
The perennial bias of the Israeli judiciary, and particularly the Supreme Court, has had an impact on public opinion. In a poll conducted by the Maagar Mohot Survey Institute and published November 11, 2011, only 14 percent of respondents believed the Supreme Court represented all elements of the nation while 51 percent believed it did not. By 54 percent to 46 percent, those polled viewed the court as politically slanted. Of the 54 percent who declared the court politically biased, by 75 percent to 11 percent they saw it as slanted in favor of the Left.
The vigorous opposition of the Israeli Left to reforms of the judicial selection process that would bring it more in line with democratic norms calls to mind a television interview conducted in June 1977 with Itzhak Ben Aharon, a former Labor member of the Knesset and head of the Histradrut Labor Federation. The occasion was the election of the first non-leftist government in Israel’s history. Ben Aharon declared: “The [election] results are a mistake.” The interviewer responded: “But Mr. Ben Aharon, this is a democracy and the people have spoken.” To which Ban Aharon retorted, “The people are wrong.”
No element of Israeli national governance is more in need of constitutional controls than the judicial system. Short of introduction of a constitution with a system of checks and balances, the corrective of legislating Knesset vetting of candidates for the judiciary is the least the public should demand if the nation’s judiciary is to move toward conforming to standards of judicial power and judicial constraint characteristic of functioning democracies.
Kenneth Levin is a psychiatrist and historian and author of “The Oslo Syndrome: Delusions of a People under Siege” (Smith and Kraus Global, 2005; paperback 2006).
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