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November 25, 2015 / 13 Kislev, 5776
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Posts Tagged ‘High Court’

The Migron Litmus Test

Thursday, April 12th, 2012

The recent Israeli High Court ruling striking down the compromise agreement between Israel’s government and the residents of Migron was logical. It was a realistic commentary on the state of affairs between the government and the court. In truth, the question that was laid at the High Court’s doorstep was not about Migron and not about property rights. It was much more basic than that. The question that the High Court was asked to decide was to whom the Land of Israel belongs.

The significance of the High Court’s ruling, that a Jewish settlement must be destroyed without any petition staking a claim to the land upon which Migron is built, is that the Land of Israel does not belong to the Jews – but rather to the Arabs. The Jews, according to the High Court, live in the Land of Israel with temporary resident status, as guests – a status completely different from that of the Arabs living here.

The deeper truth is that the High Court’s approach reflects that of Israeli society. The Israelis love the land, but after years of leftist thought manipulation they have adopted leftist temporary mentality and feel like guests in their land. It is the Arab who is here forever, the Arab who is the unmovable boulder. The Jew is a temporary guest who must apologize for his presence here.

Sound extreme? Just ask yourself what would happen if the tables were turned. Is it even remotely possible that an Arab village in Israel would be completely destroyed because of such an unfounded claim? The High Court would not even allow a hearing to come near it, and in a thicket of convoluted reasoning and legalese the system would determine the same preposterous principle that the Land of Israel belongs to the Arabs.

As long as the High Court justices elect themselves, the High Court will continue to bequeath its legacy of “a state of all its citizens” to the public. There is actually nothing to complain about, for this is their view – and the political branch of government empowers it.

Every child learns in his first civics lesson that the people are the sovereign. The parliament and the elected government actualize the rule of the people. The court’s role is to explain the laws legislated by the parliament. If Israel would have a justice system that represents the public’s values (in other words, if the justices would be filtered in some way by the state’s elected officials), Migron would never have been an issue.

When a home is built and after many years an unfounded claim on the property is made, any legal system would call, maximally, for compensation. And this would happen only after the claim was proven beyond a reasonable doubt. But the High Court operates by a political worldview that is different than that of the vast majority of the public. The public – the sovereign – is then forced to enact another law to underscore its will. That is how the law that would legalize the outposts was born. The law is moderate, and begs to be legislated.

Many refer to the Outpost Law as a law that circumvents the High Court. That terminology is false, Orwellian newspeak in the finest tradition of Israel’s Left. The Knesset does not circumvent the High Court; the Knesset is the sovereign. It is the High Court that circumvented the Knesset. The Knesset is being forced to enact the Outpost Law to protect the public from the political whims of the High Court. The Outpost Law is moral, eminently legal, and supremely democratic. It is a step that, besides protecting Migron, will preserve the sovereignty of the people (namely, democracy and the law). It will also preserve the rule of the Likud, as another Amona will necessarily lead to its downfall.

What is preventing the legislation? One minister who believes in judges more than in God, and another minister or two who lean left and are subordinate to the politics inside the justice system. And don’t forget an entire imbroglio of leftist organizations and interests, and of course the media – the Sword of Damocles, ready and waiting to defame Prime Minister Netanyahu for trampling the “rule of law.”

In his quest to keep all those forces at bay, Netanyahu is not allowing the ministers to vote for the Outpost Law. But without the votes of the Likud ministers and MKs, there will not be a majority for the law.

If, God forbid, Netanyahu goes through with the destruction of Migron, he will suffer much more political harm than if he demonstrates leadership and solves the problem now.

Two ministers have already announced that they will vote in favor of the Outpost Law: Yisrael Katz and Moshe Kahlon. We wholeheartedly bless them and expect the other Likud MKs to follow in their footsteps. Ministers or MKs who do not vote in favor of the law should not expect our support in the Likud primaries.

Knesset Speaker: Elections in September; New Law Will Reduce Power of High Court; Pollard Will Go Free

Wednesday, April 11th, 2012

Knesset Speaker Reuven Rivlin (Likud) is convinced that elections for Israel’s next government will be held in five months, this coming September. In his opinion, Prime Minister Benjamin Netanyahu is facing at least two serious problems—the Tal Law and the state budget—which require setting priorities under pressures from special interest groups within the coalition government.

“There are social and economic issues, there are also elections in the United States. Netanyahu will prefer to put those problems behind, not before him, which is why he will seek the ballot box,” Rivlin told Ma’ariv in a special holiday interview, to be published Thursday.

There’s one major reason why Rivlin is interested in going to the voter soon: he does not believe that the current Knesset could pass the legislation titled “Basic Law: Legislation,” which has been stirring up a political storm in recent days. Rivlin believes that the proposed law, much of it his own brainchild, could receive a majority in the current Knesset, especially if Netanyahu decided not to support it.

Rivlin delivered the new Basic Law regarding legislation to Justice Minister Ya’akov Neeman. The bill is designed to dramatically change the balance of power between the Supreme Court and the Knesset. According to the proposed law, the Supreme Court will, for the first time, be given explicit authority to overturn laws – but a majority of 65 Knesset members will suffice to overturn the court’s decision.

Rivlin believes that much of the resistance to his bill is not based on the merit of giving the legislator a more equal footing with the court over disputed laws, but, rather, over the size of the special majority needed to overturn a court decision. He thinks that many more MKs would join him if the bill called for a special majority of 70.

To date, inside the coalition government, Rivlin’s bill is being opposed by ministers Ehud Barak, Benny Begin, Dan Meridor and Michael Eitan, by Likud MK Yariv Levin, and by senior legal officials.

Rivlin explained in his particularly unique language the issues his bill is intended to resolve:

“MKs from the right have been complaining that they are legislating on the basis of political considerations, and then the court comes and interprets their intentions in a way that is the exact opposite of what they had in mind. It’s like (Israel’s poet laureate Nachman) Bialik’s poem ‘Ken La’Tzipor’ (The Bird’s Nest). I can say that the bird is an eagle, someone else can say that the bird is a parrot, a third one says it’s a hoopoe. Comes the Court and determines that the bird is an elephant. This cannot be.”

In the same interview, Rivlin says he is certain that the efforts being made by President Shimon Peres to free Jewish spy Jonathan Pollard will be successful.

“Peres will bring him home,” Rivlin declares, and with the same breath he attacks US Jews, who stayed clear of the Pollard affair. “Unfortunately, they abandoned Pollard,” says Rivlin. “They all think he’s lucky they didn’t give him the death penalty.”

The Migron Saga – the Animated Version

Monday, March 26th, 2012

The entire story of the Migron outpost explained in 3 entertaining minutes, including the missing link, the one component the High Court is yet to offer in this sad trampling over justice and lives: proof of Arab ownership.

Turn on subtitles by clicking the “cc” button.

High Court: Obeying the Law Not Enough to Establish Jewish Ownership in Judea and Samaria

Thursday, March 22nd, 2012

The Israeli High Court of Justice ruled late Tuesday night that a Jewish inhabitant of a tract of land near the community of Kedumim in Samaria can no longer use the existing legal framework as the basis for his ownership of the land.

The High Court accepted the petition brought by three Palestinians – which was filed by Yesh Din (an anti-settlement non-profit organization) and later joined by the State Prosecutor’s Office, stating that Michael Lesens must evacuate the tract within a month, and ordering the Civil Administration of Judea and Samaria to oversee and enforce his eviction. Lesens was also ordered to pay the Palestinians NIS 20,000 in compensation.

The petitioners claimed that Lesens planted crops, installed an irrigation system, and fenced in the tract against the orders of the Civil Administration. Lesens, for his part, cited Section 20 of the Ottoman Land Law to argue that because he and others had cultivated the land for more than 10 years, the statute of limitations had expired, and claims against his assumption of ownership could no longer be asserted.

But the bench – comprised of Supreme Court President Dorit Beinisch (who, though retired, continues to preside over cases that were initiated prior to her retirement), Edna Arbel, and Miriam Naor – stated that Lesens had not proven to the court that he had cultivated the land for over 10 years, and even if he had, he would still be required to demonstrate that he had “honestly taken” possession of the land in question.

It is precisely this part of the decision that has left-wing organizations cheering and nationalists fuming – as the court appeared to set a new precedent by creating an additional evidentiary hurdle to asserting ownership, and -in effect- mandating that one could no longer obtain ownership of land in Judea and Samaria under the prevailing law.

Aside from its demonstrable departure from the current law on the books, the new court-ordered requirement is somewhat dubious, as it will likely be difficult for Jews claiming ownership to provide proof that they acquired the land using honest means; especially considering the subjective nature of the requirement and the often-hostile relations between Jews and Palestinians in Judea and Samaria.

The practical ramification of the ruling is that it will allow the Civil Administration to order the eviction and evacuation of Jewish inhabitants from hundreds of thousands of dunams in Judea and Samaria.

Parliamentary Adviser to National Union MK Jacob Katz “Katzele” Jeremy Man Saltan told the Jewish Press that many nationalist MKs are concerned that “the Supreme Court is trying to change the meaning of the Ottoman Law itself (the old Ottoman Empire law from which the Israeli legal system has evolved), instead of asking the Israeli legislator to pass its own version.”

“The law is very clear,” Saltan added, “and people are really shocked that the Supreme Court has gone from changing Israeli laws that don’t meet their standards as they relate to Basic Laws, to changing the Ottoman laws outright.”

Migron Settlers Signed Evacuation Agreement ‘With a Gun to our Head’

Monday, March 12th, 2012

Some 13 years after its establishment, and six years after the court case on the settlement’s legality began, all the residents of Migron, a large outposts in Judea and Samaria, arrived Sunday night at their local synagogue and signed an affidavit to be submitted to the court, committing to leave their homes voluntarily and without any forced eviction in three and a half years.

The daily Maariv reported that after weeks of negotiations between the outpost and Minister Benny Begin, who was appointed by the Prime Minister to coordinate the talks, residents announced at noon on Sunday, 20 days before the date set by the High Court for a full evacuation of their homes, that they are willing to sign the agreement.

Itai Harel, who founded the Migron in 1999, said at the signing: “They held a gun to our head. We have signed here an agreement that does not do justice. There is no one in the world who has shown proof of ownership of this land, and therefore this displacement will be unlawful.”

Under the agreement, immediately after receiving the High Court approval, an expedited  process of planning an alternative neighborhood for the residents of Migron will commence. The new site will be built  two kilometers away from the current position of the outpost.

As per their signed agreement, not later than the end of November 2015, all 48 families will move to permanent homes on state-owned land at their new location.

In recent weeks, negotiations almost broke down, after Minister Begin refused the residents’ insistence that in the time until November 2015, when the new neighborhood is slated to be completed, the state will conduct a re-examination of the actual legal status of the land on which the current Migron is standing, and if found to be used in the ground – an Israeli presence would remain in place.

The Migron campaign headquarters said that the residents acquiesced “with a heavy heart, but out of a sense of national responsibility to adhere to the Supreme Court rule,” and to avoid confrontation and “difficult scenes” with police. “We took upon ourselves the sad agreement, despite the forced renunciation and the pain inherent in being uprooted and evacuated from our settlement for no reason,” and without the opportunity to prove in civil court that they are, indeed, the legal owners.

The campaign also said that “Migron expresses confidence in the Israeli government and its representative, Minister Begin, that the solution being presented will stop confrontation between brothers.”

The Shahar Mizrahi Effect

Wednesday, March 7th, 2012

It is impossible not to make a connection between the intentional running over of the policeman this Friday night by an Arab car thief and the Shahar Mizrahi story.

A number of years ago, police officer Shahar Mizrahi felt that his life was in danger when an Arab car thief attempted to run him over. Mizrahi shot and killed his attacker and was sentenced to 15 months imprisonment. He appealed to the High Court, and the justices, headed by Chief Justice Dorit Beinisch, doubled his sentence to 30 months.

The police officers that tried to arrest the Arab car thief threatening to run them over this Friday night remembered the Shahar Mizrahi precedent well. None of them wanted to end his career in jail. One officer was run over, smashed against the windshield, thrown into the air, and seriously injured. I do not know the full extent of the police officer’s injuries, but he will probably remain crippled for his entire life, as it is not easy to bounce back from such severe injuries. It is Beinisch and her supportive colleagues in the Mizrahi verdict who are responsible for the cheapening of the police officers’ lives.

It is not only the police who are vulnerable; it is also Israeli soldiers. The High Court rulings on the procedure for arresting a suspect make it extremely difficult to take a suspect by surprise. This has made the soldiers’ lives cheaper than the lives of Israel’s enemies.

Remember the law proposed by MK Yariv Levin that would require a Knesset hearing for all High Court candidates? It was buried by the prime minister. The law dictates that the public’s representatives, who more or less proportionally represent the spectrum of views in Israeli society as expressed in the elections, would ask the candidates various questions. What do you think would be the fate of a candidate who, when asked if he or she considers it legal for a police officer or soldier who feels directly threatened to shoot in order to eliminate the threat, would answer that they have no such right? Would that candidate advance past the hearing? If High Court Justice Salim Jubran (who, for the record, refused last week to sing the national anthem at an official state event) answered no to the question of whether he would be singing “Hatikvah” at official ceremonies, would he progress past the representatives of the voters?

It is impossible to escape the feeling that the disconnection between the judges and society eventually engenders legal decisions that express scorn for the lives of Israel’s citizens.

We can certainly hope that the Hearing Law will be brought up once again for Knesset approval. New Chief Justice Asher Grunis has a much more streamlined approach to the role of the High Court, but this is still far from solving the root of the problem: The strongest system in Israel – the system that appoints itself and is not subject to public scrutiny – cannot hinge on the integrity of one particular justice.

The fundamental problem is the complete disconnect between the High Court justices and society. It will not be solved by changing the chief justice. The status of the High Court will continue to suffer until the public feels that the body that is supposed to protect it truly represents Israeli society and its values.

Knesset Debates Haredi Service After Tal Law Annulled

Wednesday, February 22nd, 2012

In the wake of yesterday’s landmark decision by Israel’s High Court of Justice to declare the Tal Law unconstitutional, the Knesset was left to deal with the fallout – and proceeded to reject two Kadima-sponsored bills that sought to legislate mandatory military or national service for all Israeli citizens.

The Tal Law, enacted in 2002, was intended to promote enlistment of Haredi men in the IDF by exempting draft-age yeshiva students from military service for a prescribed period of time. In a 6-3 ruling, the High Court determined that the law is unconstitutional and cannot be extended by the Knesset in its present form when it expires on August 1. The Tal law is a temporary law that must be renewed every five years.

And so the Knesset convened Wednesday to deliberate on one of the most controversial and polarizing issues in Israel today. Kadima was the first party to offer its vision for an alternative to the Tal Law, saying that it proposed both bills “to promote equality between all sectors in shouldering the national effort.” The National Service bill, which was proposed by MK Yoel Hasson and would have required ultra-Orthodox Jews and Arabs to perform national or military service, was rejected by a vote of 55 – 27. MK Nachman Shai proposed the other bill – the Defense Service bill, which was rejected by a vote of 40 – 23.

Kadima has increasingly cast itself as the leader in the crusade to end what it describes as preferential treatment for the Haredi demographic. Chairwoman Tzipi Livni continued to bemoan the status quo in the aftermath of the High Court decision: “This injustice has been perpetuated for far too long. No one has a monopoly on prayer.”

“It’s time we stopped lying to ourselves,” she lamented, “the IDF is no longer the ‘people’s army’ and we didn’t need the High Court of Justice to tell us that the burden isn’t distributed equally.

“For years we have been trying to reach an agreement and for years, Haredi politicians have been abusing the weaknesses shown by the other politicians here,” she continued. “It is time to say – enough is enough. It is time we changed the rules of the game once and for all.”

Livni, seeking to head off charges that she is promoting divisiveness and an anti-religious platform, insisted that the bills were proposed “for the unity of Israel. We don’t want an internal strife but we won’t relent – we will meet you with love but we will also meet you with draft orders, either for the IDF or for civic and national service. There is no choice. You must serve beside us…You will still pray – in the IDF, in the police, in the Fire Department and in hospitals…This miscarriage of justice – draft dodging – has been going on for too long.”

The decision to revoke the Tal law has been widely and predictably denounced by religious parties, while Prime Minister Netanyahu released a statement Tuesday, saying: “As I stated even before the High Court of Justice decision, the Tal Law in its current format will not be continued, and in the coming months we will formulate a new law that will lead to a more just change in the burden of all sectors of Israeli society.”

Foreign Minister and Yisrael Beteinu head Avigdor Lieberman pledged that his party will also propose an alternative to the Tal Law whereby “everyone will serve the state.”

“I have no expectation of seeing masses of Haredim and minorities suddenly flooding the air force cadets’ course or being placed in the elite units, but they can certainly join the national effort. I see no reason why a Haredi man can’t sit in front of a computer in the army and make his contribution or be part of the national service.”

In a possible veiled threat to the Prime Minister, Lieberman said that the High Court decision “helps the coalition understand it finally has to take decisions rather than waffle.”

Analysts and politicians alike have speculated that the matter of Haredi deferment and exemption from military/national service is the one issue that could cause Netanyahu’s heretofore stable coalition to fall apart. Shas, the largest ultra-Orthodox party in the coalition, appeared to be seeking to allay such concerns. When asked if the coalition will be threatened by the ruling, Shas Party spokesman Yakov Betzalel responded: “No, no, no. I don’t see it in the offing.” Still, the coalition seems headed for difficult days ahead, as Betzalel expressed confidence that Haredi males would be able to continue their Yeshiva study, and predicted that a new law would be passed that would reflect “minor changes” to the current law. “From my experience, the ultra-Orthodox community will not accept even short-term enlistment…but let’s see what will happen.”

See also: Journalist: Secular Fear of Haredim Drove Court’s Rule on Service Deferments

Printed from: http://www.jewishpress.com/news/israel/religious-secular-in-israel/knesset-debates-haredi-service-after-tal-law-annulled/2012/02/22/

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