The Foundation for Constitutional Democracy

18-Sep-2006

Against Judicial Despotism In Israel

Filed under: Supreme Court/JudicialKnesset/Legislative — eidelberg @ 10:09 am Edit This

Israel’s Supreme Court stands accused by eminent citizens of Israel of exceeding its lawful powers and endangering the democratic as well as Jewish character of the State.

Former President of Israel, the late Chaim Herzog: “In a democracy, according to [Court President Aharon] Barak, the courts are placed above the Government. In my humble opinion, this approach endangers, in certain cases, the very basis of democracy.”

Former Supreme Court President Moshe Landau: “How can it be considered democratic to allow an oligarchic body such as the Supreme Court to review decisions that were made in a democratic fashion [by the Knesset]?”

Former Deputy President of the Court professor Menachem Elon: “The theory [that the Court may intervene in the law-making activities of the Knesset] has no basis in reality.”

Former Supreme Court Justice Yaakov Maltz: “The Supreme Court has crossed red lines, and is harming the dominion of the Knesset.”

Former Supreme Court Justice Zvi Tal: “When the Court must decide between individual civil rights and Jewish values, the former has until now been given the upper hand. This should not be so in a Jewish state…”

Hebrew University political scientist professor Shlomo Avineri: “The Court’s judicial activism … has caused not a small portion of the population—and not only extreme haredim—to view the Court as its enemy.”

Attorney Yisrael Kluf, a member of the Israel Bar Association Central Committee: “When the [Barak] Court determined … that everything is justiciable and that the Court is authorized to nullify laws … it took powers that it never had and that were very close to—if not beyond—those of other branches…”

Hebrew University professor of law Ruth Gavison: “No Supreme Court in the world has taken upon itself such powers… The judges of the Supreme Court represent a particular segment of Israeli society: Ashkenazi secular men. It is not clear why the entire Israeli society must live according to its dictates.”

Specifically, whereas this Court 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;

Whereas this same Court 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;

Whereas this Court quashed the Attorney General’s indictment of Arab Knesset Member Talib a-Sana, who, in an interview on Abu-Dhabi TV, praised a suicide bombing attack in Israel and called for more of the same;

Whereas this same Court substituted its judgment for that of the IDF by ruling against the leveling of the very houses Arab terrorists used to murder Tali Hatuel and her four daughters;

Whereas this Court has issued rulings concerning the “security fence” showing more concern for the inconveniences of Arabs than for the lives of Jews; has nullified a law permitting the Film Censorship Board to ban “Jenin, Jenin,” a palpably mendacious film that slanders the State of Israel and its soldiers in Operation Defensive Shield; and to cap its judicial arrogance, has even declared parental spanking a criminal offense, contrary to a consensus of the Knesset!

Therefore, given the preceding evidence—and much more can be cited—we call on the Knesset to assert its constitutional authority by amending Basic Law: The Judiciary to (1) democratize the mode of electing Supreme Court judges by having judges nominated by the President (with the advice of a council learned in Jewish and secular law), and confirmed by the Knesset; (2) explicitly exclude the Supreme Court from nullifying Knesset legislation; and (3) require the Court to abide by the Knesset’s Foundations of Law Act 1980 so that its decisions will be consistent with “the principles of freedom, justice, equity, and peace of the Jewish heritage.”