The Foundation for Constitutional Democracy

Edited transcript of the Eidelberg Report, Israel National Radio, February 5, 2007.

Part I

At the risk of offending religious people, I am going to argue in Part II of this essay that Israel’s religious parties have unwittingly contributed to judicial imperialism and the secularization of Israeli society. However, to defend this conclusion, I must set forth, in Part I, statements made by eminent Israelis who have denounced the Supreme Court for 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 [Justice Aharon] Barak, the courts are placed above the Government. In my humble opinion, this approach endangers, in certain cases, the very basis of democracy.” (more…)

The founders of modernity, Machiavelli, Hobbes, Spinoza, Rousseau, Marx, prepared the foundations for the secular democratic state. In the name of philosophy and science, they undermined the authority of the Bible and removed religion from the domain of truth. Modernity, however, has spawned post-modernism, where truth has given way to moral and cultural relativism, the reigning doctrine of the secular democratic state now in process of decay.

Secular democracy was the goal of the Zionists who established the State of Israel. Their Zionism was based on the territorial nationalism of nineteenth-century Europe. (more…)

No great wisdom is required to enumerate the axiomatic requirements of a Jewish national strategy. Only needed is candor and courage. These axiomatic requirements are:

1. Public affirmation that Israel is the Commonwealth of the Jewish People.

2. Public affirmation that such a Commonwealth must be based on Jewish principles and values. (more…)

On December 12, 2006, Israel’s High Court of Justice ruled that Palestinian residents of the “West Bank” and Gaza could file lawsuits against Israel for damages incurred in IDF operations, provided that the operations in question did not take place as part of a clearly defined “war.”

The court ignored or trivialized the fact that the elected leaders of these Palestinians, consistent with their PLO Constitution, are explicitly waging a relentless war against Israel. (more…)

The cabinet will soon vote on Avigdor Lieberman’s government reform bill. It is a dangerous bill tailored to Lieberman’s personal ambitions.

The chairman of Israel Beiteinu claims that his proposal for a presidential form of government is modeled after the America system. If so, I will have to trash my two books on the American Constitution and apologize to the political scientists that have either adopted or recommended these books in their courses on American government. (more…)

Edited transcript of the Eidelberg Report, Israel National Radio, September 18, 2006.

As indicated in Part I, members of Israel’s Knesset are not individually elected by or accountable to the people in constituency elections. This enables Knesset members to ignore public opinion with impunity. That’s what 23 Likud MKs did when they voted for Sharon’s Labor-inspired policy of “disengagement,” a policy rejected by a vast majority of the people in the 2003 election.

This policy—Israel’s withdrawal from Gaza —led to the war with Hezbollah in Lebanon, as recently confirmed by former Chief of General Staff Moshe Yaalon.

Now it’s easy to blame Israel’s fiasco in that war on the flawed character of Israel’s political elites. But if we consider how disengagement via the Evacuation Law was passed, the war would not have occurred were it not for the flawed character of Israel’s system of governance—a system that virtually disenfranchises the Jewish people. Let’s probe a little deeper. (more…)

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.” (more…)

The Law vs. Aharon Barak: A full-page advertisement with this title was published on October 22, 2004 in The Jerusalem Post, in Makor Rishon and in the International Edition of The Jerusalem Post.

According to international law Judea and Samaria are not “occupied territories”, as evidenced by several international agreements that have recognized the Jewish People’s right to possess and settle the land.

The primary international legal documents that assumed, either expressly or implicitly, that Judea and Samaria are Jewish territories, being an indivisible part of the Jewish National Home, are: (more…)

[Edited transcript of the Eidelberg Report, Israel National Radio, August 7, 2006].

In the August 4 Ha’aretz Magazine, Ari Shavit wrote a remarkable article: he blamed the Israel’s failings in the Lebanese war to Israel’s “governing systems.” Shavit, reputedly a Leftist, is calling for systemic change—something I have advocated for decades. Unfortunately, Shavit doesn’t show how Israel’s system is responsible for the Lebanese debacle. That’s what I am now going to do.

Let’s begin with the fact that Labor’s policy of “unilateral disengagement” was the paramount issue of the January 2003 election. The parties that opposed this policy won 84 or 70% of the Knesset’s 120 seats. (more…)

[Edited transcript of the Eidelberg Report, Israel National Radio, May 22, 2006].

Before discussing Judge Barak, let us review Israel’s undemocratic method of appointing Supreme Court judges—there’s nothing like it in the democratic world.

The fifteen judges of the court are appointed by a nine-member committee consisting of three sitting justices, including the court president. Two are representatives of the Israel Bar Association. Two are cabinet ministers, including, the justice minister. Two are Knesset members, one representing the government coalition, the other representing the opposition. The committee’s majority, therefore, is unelected. Moreover, the two Bar Association members are subject to pressure by the court president before whom they may argue cases. This also applies to the justice minister, who 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.

So it’s obvious that Israel’s High Court of Justice is a self-perpetuating oligarchy. (more…)

Don’t Be Deceived: To Support Elon is to Support the SYSTEM
Disengagement: The Ugly Truth About the Knesset

1. In October 2004, the Knesset passed the unilateral Disengagement bill by a vote of 67 to 45. Amazing, because this Knesset came into existence as a result of the January 2003 election, when parties opposed to unilateral Disengagement won 84 Knesset seats or 70% of the Knesset’s membership. (more…)

As I indicated several years ago, as well as very recently, Martin Luther King’s civil disobedience movement (unless supplemented by other measures) is not likely to stop Sharon’s expulsion plan in any part of Israel. To understand why, we must understand the legal and political context which made Martin Luther King’s civil rights movement a success. (more…)

Please disseminate as widely as possible. Sign this as a petition online!

Fellow Citizens and Friends of Israel!

The Land and People of Israel are in great danger. We, who experienced Soviet totalitarianism, and took part in the struggle against tyranny, recognize the familiar signs—the party oligarchy called “Israeli democracy” is turning into a one-man dictatorship—that of Ariel Sharon. (more…)

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. (more…)

Before setting forth the record of judicial despotism of Israel’s Supreme Court under its president, judge Aharon Barak, it will be worthwhile to mention a judicial ruling of one of the greatest Talmudists, Ra’avad (Rabbi Avraham ben David of Posquires, 1125-1198). Ra’avad held that a Beth Din may never revoke the decision of a previous Beth Din once its latter has taken hold and spread throughout Israel.

In the last two months of 1998, Israeli courts, handed down three precedent-setting rulings that contain the seeds for fundamental change in Israel’s way of life. The first was a decision of the Supeme Court, sitting as the High Court of Justice, that forced the religious councils in Jerusalem and Kiryat Tivon to seat representatives of the Reform and Conservative movements. (more…)

Israel is commonly regarded as the “only democracy in the Middle East,” and so it is compared to its despotic Arab neighbors. But how does Israeli governance today stand vis-a-vis Torah governance?

To answer this question, I shall limit myself to certain judicial aspects of Torah governance, and invite the reader to contrast what he knows of Israel’s Supreme Court under its president, Judge Aharon Barak.

The judicial and highest organ of Torah governance is the Great Sanhedrin. (See Deut. 17.11.) Consisting of seventy-one judges, this extraordinary institution combines judicial and legislative powers and may even bring the king to justice on a suit brought against him by any private citizen. (more…)

Israel’s Chief Justice Aaron Barak: Part I

Back in March 1992, the Knesset enacted two basic laws, Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation. According to Justice Aaron Barak, who at the time was not president of Israel’s Supreme Court, these two Basic Laws were nothing less than a “constitutional revolution.” The first mentioned Basic Law was passed by a vote of 32-21, that is, with less than half the Knesset voting, while the second passed by the underwhelming vote of 23-0.

Well, you see dear reader, there was an impending Knesset election, and Israel’s MKs were preoccupied with more important matters, like saving their seats. Yet these Basic Laws are supposed to be part of Israel’s so-called “emerging constitution.” It’s been emerging for decades! Emerging or not, can anyone imagine amending a country’s constitution, its fundamental law, by a mere 20% of its legislature, representing, we may suppose, a mere 20% of that country’s population! Would anyone take such a amendment seriously, or feel that it should have the status of a fundamental law superior to ordinary legislation? (more…)

The rule of law is a basic principle of the Torah and of classical democracy. The rule of law affirms that those who make the laws are obliged to obey the laws. Accordingly, Jewish law enables private citizens to bring public officials—including a king—to the bar of justice. Consistent therewith, the American Supreme Court held that a private citizen can institute a civil suit against a President, as indeed occurred in the case in which (former) President Bill Clinton was accused of sexual harassment.

The rule of law as just defined hardly exists in Israel. Abbie Nathan and Shimon Peres made contact with Yasser Arafat in violation of the 1986 Prevention of Terrorism Act. Mr. Nathan, a private citizen, was incarcerated for six months for that felony. Shimon Peres was never indicted. (more…)

People in Israel and abroad wonder what it is that makes politics and politicians so erratic in the Jewish state.

First and foremost the lack of a written constitution in this country, one that prescribes the powers of the Legislative, Executive, and Judicial branches of government. Instead, Israel has a welter of Basic Laws enacted haphazardly over the course of decades, which laws, far from being “basic,” are easily changed and so vague as to allow politicians and judges enormous latitude. (more…)

The Hebrew term for king, melech, primarily implies a chief “counselor,” a president whose intellectual and moral qualities warrant his elevation and authority. What follows is the Scriptural basis for kingship in Israel (Deut. 17:14-15):

“When you come to the land which the L-rd your G-d is giving you, and shall have taken possession of it and have settled therein, you will eventually say: ‘We would appoint a king, just like the nations around us.’ You must then appoint a king from among your brethren; you may not appoint a foreigner …” The last verse suggests that clause of the American Constitution which requires a president of the United States to be a native-born American. Contrast Israel. (more…)