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September 22, 2014 / 27 Elul, 5774
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Israel’s Dictatorship Of The Judiciary

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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…”

* * * * *

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.

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