The Foundation for Constitutional Democracy

13-Mar-2003

Judicial Despotism In Israel Continued

Filed under: JudaismSupreme Court/Judicial — eidelberg @ 11:29 pm

13.3.03

1. The method of appointing Israel’s Supreme Court justices is the most undemocratic in the free world. Only Israel allows almost no role for elected officials in the selection process. Three members of the nine-member selection committee are sitting members of the High Court, including the Court’s president; two are representatives of the Israel Bar Association; and four are members of the two leading parties, including the justice minister and a member of the Knesset Law Committee. The committee’s majority, therefore, is unelected. Moreover, the two members of the Bar are subject to various forms of pressure by the president of the Court before whom they may frequently appear. For similar reasons, the justice minister can also be manipulated by the Court’s president. And since the Court’s president handpicks the judges for every case, he can very much determine the selection of his own successor as well as the Court’s character as a whole. In short, Israel’s High Court of Justice is a self-perpetuating oligarchy.

2. The Court renders thousands of decisions a year affecting the political, social, economic, ethnic, and religious character of the State. It does so in the name of democracy but with only occasional references to the laws and moral principles of the Jewish tradition. No other court in the world ignores the legal heritage of its own people. Israel cannot endure as a Jewish state when its judicial system, which subtly influences every aspect of daily life, is deliberately and primarily based on non-Jewish law.

3. The Court’s decisions frequently violate the abiding beliefs and practices of a very large majority of Israel’s Jewish population, some 50% of which believe in the divine origin of the Torah, and 75% are either orthodox or traditional. To mention only a few examples of its anti-religious orientation, the Supreme Court, without legislative authority or judicial precedent, has (a) ruled that the Chief Rabbinate does not have final jurisdiction over conversions; (b) ordered the Minister of Interior to register Reform conversions; (c) ruled that rabbinical courts must adopt the same criteria as civil courts when deciding property settlements in divorce cases; (d) directed the Minister of Religious affairs to sign appointments of Reform and Conservative members to religious councils; (e) ruled that kibbutz shopping centers may remain open to the public on the Sabbath; (f) declared “illegal” the Defense Ministry’s policy of exempting yeshiva students from military service (yet blanket exemptions from any form of national service has remained “legal” for Arab citizens); (g) ruled that forbidding the import of non-kosher meat infringed Basic Law: Freedom of Occupation; (h) ordered the return of a girl to a secular school after her father withdrew her; (i) awarded four Jewish children to their Moslem father instead of their mother (who had returned to Judaism); (j) overruled the Education Minister’s decision to delay the screening of a program on homosexual youth.

4. Let me cite other outrageous, if not unlawful, decisions of the Barak Court. This Court (a) nullified the Knesset Elections Committee decision to disqualify Arab Knesset Member Azmi Bishara, who was indicted by the Attorney General for violating the Prevention of Terrorism Act; (b) ignored the Attorney General’s decision, affirmed by the Knesset Elections Committee, to disqualify the Balad Party for violating Basic Law: The Knesset, which prohibits any party that negates the Jewish character of the State; (c) quashed the Attorney General’s indictment of Arab Knesset Member Talib a-Sana, who, in an interview on Abu-Dabai TV, not only praised a suicide bombing attack in Israel but also called for more of the same; (d) ordered the Interior Minister to recognize homosexual adoptions performed overseas, even though Israeli law does not recognize such; (e) declared parental spanking a criminal offense, contrary to a consensus of the Knesset; (f) arrogated to itself the power to prevent the army from destroying Arab dwellings from which Arab terrorists fired at Jews; (g) nullified a law permitting the Film Censorship Board to ban pornographic movies by ruling that nothing can actually be declared pornography, as one man’s pornography is another man’s art. Here judge Barak’s relativism is quite naked.

5. Although the Court will not deny that Israel is, or is supposed to be, a Jewish as well as democratic state, it exalts democratic rights in almost total disregard of Jewish rights, ignoring, therefore, the convictions and customs of a large majority of Israel’s Jewish population. Judge Barak baldly states that his duty is to be “faithful to the views of the enlightened population,” meaning Israel’s cultural elites—ultra-secularists alienated from the Jewish heritage.

6. The Court has deliberately ignored the Foundations of Law Act 1980, which authorizes the Court, when there is a gap or ambiguity in the law, to apply “the principles of freedom, justice, equity, and peace of the Jewish heritage.” The Court is therefore undermining the people’s sense of national consciousness. Severed from its own laws and constitutional history, a country’s political, economic, and social history will be largely unintelligible. Its legal heritage will cease to have practical relevance. Fewer and fewer people will understand their past, the way their forefathers related to each other in daily life, the conditions under which they lived, their way of thinking. Without such knowledge Israel will forget its world-historical mission.

7. Ignorant of their legal heritage, Israel’s opinion-makers and policy-makers can have no clear sense of national purpose. Their public statements, their political and judicial decisions, especially when influenced by a pluralistic mode of thought, will lack coherence and direction, indeed, will be all the more prone to foreign influence and pressures. At stake is a people’s emotional security, their solidarity and confidence in the future, their very ability to withstand adversity.

8. Therefore, it is of urgent necessity to petition the Knesset to exercise its constitutional authority and amend Basic Law: The Judiciary to (a) explicitly exclude the Supreme Court from reviewing Knesset legislation, hence, to limit the Court’s jurisdiction to civil and criminal cases; (b) explicitly require the Supreme Court to abide by the Foundations of Law Act 1980; and (c) establish a Constitutional Court whose jurisdiction will extend only to basic laws that directly affect the organization of the Legislative, Executive, and Judicial branches of government.