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May 30, 2015 / 12 Sivan, 5775
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Bills to ‘Balance the Power’ of the Court Doomed – for Now

The US enjoys a “check and balances” system of legislative, judicial and executive powers. In Israel, the leftwing keeps an imbalance. The rightwing is too immature to succeed to pass a bill to change it.
Bills to restore the balance of power in Israel will be fought by the not-so-judicial left.

Bills to restore the balance of power in Israel will be fought by the not-so-judicial left.

Two Knesset Members, one from the Likud and one from the Jewish Home party, are proposing bills to check the powers of the Supreme Court, which has moved Israel towards a judicial state in the past two decades.

The elitist leftist and anti-religious media already have begun fighting the proposals, which are doomed from the start, but the legislative initiative is an important step towards the day when a wider popular demand will require a restoration to some kind of normalcy.

The new bills would change the “clubhouse” system of electing Supreme Court judges and its president and make it easier for the Knesset to circumvent Supreme Court decisions that arbitrarily strike down Knesset laws.

Polls have shown a strong trend towards mistrust of the judicial system, but it is doubtful that nationalists can overcome their image, sometimes deserved and sometimes undeserved, of trying to be just as authoritarian as the left-wing infrastructure of the Israeli establishment.

The judicial “revolution” began in Israel 18 years ago with the Supreme Court presidency of Aharon Barak, whose brilliant legal mind was located mainly on the left side of his head.

The Supreme Court’s function in Israel couldn’t be any further from its counterpart in the United States, where the court handles approximately 100 cases a year. In Israel the number is around 12,000, and that is not a typo.

The U.S. Supreme Court considers a case only when there is a question of interpretation of the law and if someone stands to be harmed by it.

Barak expanded the area of judicial authority to include virtually every social, religious and political issue, regardless of whether an individual could be harmed. He exploited the Knesset’s “Basic Law: Human Dignity and Liberty” as an excuse to examine every appeal, putting the court in a position of actively shaping the law instead of simply solving disputes.

He wrote in an article in 1992, “There are no areas in life which are outside of law,” a sign of a grab of power that never would have been tolerated had it been expressed by a nationalist or a religious Jew.

Barak’s revolution can been seen by his interference in the Knesset law that once exempted yeshiva students from serving in the IDF. The Supreme Court in the 1970s decided not to rule on a petition again the exemption, stating it was a political question. A similar case reached the court in the 1981, when it decided that the solution to the “public issue” did not rest with the judiciary.

Along came Barak in 1986, when he ruled the  issue was within the court’s jurisdiction.

He used the Basic Law as a vehicle to equate a “Jewish state” with a “democratic state,” with a decided emphasis on “democracy” at the expense of Judaism.

Barak anointed himself as a Torah sage and rabbi shortly after the Basic Law was passed and stated in a speech at Haifa University, “The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel’s democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority.”

The court, under Barak, struck down Knesset laws based on his interpretation of the Basic Law, which by his wishful thinking often contradicted Jewish Law that previously had served as a cornerstone of decisions.

For example, he decided that Rabbinical Courts must apply the doctrine of joint matrimonial property based on his outlook that a disputes  from a divorce are a result of an agreement between a husband and a wife and not a result of the act of marriage.

Backed by a jubilant media under the dominance of the Yediot Acharonot newspaper and the misnamed Voice of Israel radio network, the court has consistently ruled in favor of Peace Now and Palestinian Authority petitions against Jews, putting the burden of evidence on Jewish ownership of land in Judea and Samaria on Jews even if there is no  proof of ownership by Arabs.

The Supreme Court conveniently has stayed out of issues of security concerning petitions against releasing thousands of terrorists and security prisoners in return for even a single soldier.

Barak is out of power, but his heirs and legacy dominate the court.

In light of what has become a judicial state by virtue of cancelling Knesset laws that it considers a violation of the Basic Law, Ayelet Shaked of the Jewish Home party and Yariv Levin of the Likud party are sponsoring the bills to restore a balance of power.

Under their proposal, the Knesset would have the power to overturn a Supreme Court with an absolute majority of 61 votes, instead of the current 80.

Another change would reduce the Supreme Court’s representation from three to one on the  panel that elects judges. MK Levin stated Sunday that the changes are aimed at returning the judicial system to a more “Jewish and Zionist” way of thinking.

That is why the bills are not likely to succeed, at least not in the near future.

Prime Minister Binyamin Netanyahu previously has opposed similar efforts, and it is unlikely that Naftali Bennett, head of the Jewish Home party, will be willing to risk breaking up the coalition government by going head-to-head with the Prime Minister, especially with Justice Minister Tzipi Livni making at a “red line” issue. She tore into the proposal Sunday, unsurprisingly calling it undemocratic.

Anything is undemocratic in Israeli politics when it weakens the Left.

Levin stated on Israeli radio Sunday that the current system is built on the clubhouse idea of “cronyism,” and that is exactly why the powers-to-be will fight tooth and nail against a change.

The left-wing establishment, often correctly, is scared stiff of nationalists and rabbis. They often have done no good to the national religious movement with a narrow view that places the development of Judea and Samaria and funding its yeshiva as the only worthwhile national priorities.

That is why Yoram Rabin, head of an Israel college of management, told Israel radio Sunday, “As always, only what is right-wing is Zionist, and if it’s not right-wing, it’s anti-democratic.”

Labor party leader Shelly Yachimovich was quoted as saying, “The Right is forgetting that democracy does not only mean majority rule but respecting minority rights.”

If there was ever a case of the “pot calling the kettle black,” she gets the big prize.

What MKs Yachimovich and Livni, Yediot Acharonot, the Voice of Israel, Yair Lapid and his Yesh Atid party and their diminishing number of cohorts  do not understand is that it is only a matter of time until the national religious community matures enough to win the day.

About the Author: Tzvi Ben Gedalyahu is a graduate in journalism and economics from The George Washington University. He has worked as a cub reporter in rural Virginia and as senior copy editor for major Canadian metropolitan dailies. Tzvi wrote for Arutz Sheva for several years before joining the Jewish Press.


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