INTO THE FRAY: Something to worry about…

The debilitating deadlock, in which Israel’s political system is mired, is in large measure the result of judicial disregard—or at least distortion—of the law.

By Dr. Martin Sherman, INN  May 07 , 2021 12:28 AM

Supreme Court
Supreme Court

Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded… [T]he court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda… – Prof. Ran Hirschl, Towards Juristocracy, Harvard University Press, 2004.

The public is further losing its faith in…the legal system, with only 36 percent of the Jewish public expressing confidence in the courts...–“Public’s faith in Israel’s justice system continues to plummet”, Ha’aretz , August 15, 2013.

As the Israeli political system flounders in corrosive crisis, caught in an almost inconceivable impasse—in which the formation of a Zionist coalition hinges on embracing blatantly anti-Zionist factions, some profound soul-searching is clearly called for.

Without doubt, one of the most vexing questions for any concerned citizen is—or at least, should be—how this situation was ever allowed to come about in the first place. After all, as I have underscored previously (see here and here), it is plainly and painfully clear that these dominantly Arab, anti-Zionist lists should have been precluded from participation in the elections in Israel.

This is not some fanciful Right-wing delusion but is, indeed, an unequivocal conclusion that arises from the explicit letter of the Israeli law. Indeed, from one of the quasi-constitutional Basic Laws!

Thus, Clause 7a of Basic Law: Knesset states: A list of candidates shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include…:negation of the existence of the State of Israel as a Jewish and democratic state…

There are four dominantly Arab factions in today’s Knesset. Three of them—the Communist Hadash, the ultra-Arab nationalist Balad, and the radical Taal—run together in a political alliance known as the Joint List, while the Islamist Ra’am, previously part of the Joint List, is currently running as an independent faction.

Without exception, these factions make explicit reference to their goal of ending the dominant Jewish character of Israel and transforming it into a “state-of-all-its-citizens”, including support for measures that would make Israel indefensible militarily and unsustainable demographically as a Jewish State. The same is true for a good number of prominent members of these lists. See here, here here, here & here.

This is a clear and incontrovertible contravention of not only the spirit, but of the express letter, of the Basic Law: Knesset, which, ipso facto, should be sufficient grounds for the disqualification of these lists from the Knesset elections.

It is important to note that the disqualification called for has nothing to do with the ethnicity of the Arab voters, but the enmity of the Arab parties, and does not involve the right of individual Arab citizens to vote in elections, but the right of (anti-Zionist) Arab political organizations to participate in them.

However, time and again, whenever disqualification of one of these lists—and/or certain candidates thereof—have been brought before the Supreme Court, it has ruled against disqualification and permitted their participation–while ruling to bar participation of numerous Jewish candidates and/or lists, usually on far more nebulous charges.

Indeed, Clause 7a was inserted into Basic Law: Knesset in 1985, for the express purpose of barring the participation of anti-Zionist lists in the elections—as well as that of lists/candidates who engaged in nefarious misdeeds, such as promoting racism and/or supporting armed aggression/terror against Israel.

Since then, the Supreme Court has ruled ten times to permit the participation of overtly anti-Zionist Arab lists or candidates—and never once to preclude their participation!

These judicial decisions fly in the face of common sense, the letter of the law, and the spirit of the Declaration of Independence, the country’s founding document, that affirms (and reaffirms) Israel as the nation-state of the Jews. (Interestingly—and significantly—the Declaration of Independence cites the word “Jew”/“Jewish” twenty four times—virtually all in reference (whether direct or oblique) to the right to national sovereignty—and only twice to “equal”/“equality”—and then only in the context of civic, not national, rights.)

It is this kind of perverse judicial behavior and blatant judicial disregard/distortion of the law that has gravely eroded trust in the Israeli justice system.

It raises trenchant and troubling questions—questions to which the Israeli public deserves answers.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies

May 7, 2021 | 7 Comments »

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  1. Martin Sherman’s latest article in Arutz Sheva is an absolute must read. I hope that Ted will republish it very soon.

    Et tu, Ahmad—The illusion of Arab loyalty
    Dr. Martin Sherman
    Lod: Jew wounded by Arab gunfire
    … A person who, with intent to assist an enemy in war against Israel, commits an act calculated to assist [that enemy] is liable to the death penalty or to imprisonment for life—Clause 99(a), , on Treason.

    I admit. I was totally mistaken.

    Although I have long as to the much-vaunted “loyalty” of Israel’s Arab citizens to the Jewish state, believing that, by and large, they harbored a latent yet smoldering disloyalty, that one day would erupt, I recently have been on the cusp of changing my mind.

    Misplaced optimism

    I began to believe that a certain awareness of the tremendous advantages they enjoyed living in Israel, rather than in one of the neighboring countries, was beginning to percolate into their collective consciousness. There seemed to be growing signs of this, both in the sphere of my own personal experience, where I have day-to-day interaction with Israeli Arabs; and in the sphere of the public discourse, where the term “the growing Israelization of Israeli-Arabs” became an increasingly common term in the media coverage of the Arab sector in the country.

    I live between two Arab villages, one relatively prosperous, the other not so much, residents of both villages work in my community, with whom I converse frequently. In the nearby shopping mall, much of both the staff, who are efficient and polite, and the clientele, are from Arab villages in the area. In my contacts with my Arab neighbors, I got the impression that they were undergoing a growing integration into Israeli society which I seem to have mistaken for a growing identification with Israeli society.

    Perhaps what was misleading is that today, in many ways, Israeli Arabs look more like Israeli Jews—except, of course, for those (Arabs or Jews) who don religious attire (Islamic or haredi). In their meticulous personal grooming, the brands of their clothing, their choice of footwear, the cars they drive, their leisure activity all created a false sense of similarity and diminishing differences between “them” and “us”.

    A rude awakening

    However, the riots, the ambushes, the stoning, and near lynchings of Jews by Arabs – as well as the refusal to condemn these actions by their religious leaders and representatives in the government and media – provided a rude awaking from the nascent illusion of increasingly harmonious coexistence—as did the ransacking and torching of a synagogue!

    Indeed, it was mayhem not born of socioeconomic grievances but inimical ethno-nationalistic affiliation with Israel’s foes, bent on eradicating it as a Jewish nation-state.

    It was not socio-economic despair that drove the Arab mobs to tear down the Israeli flag and replace it with that of the enemy, under whom their socio-economic plight would be considerably worse—by orders of magnitude.

    Indeed, the socio-economic predicament of Israeli Arab society is a poor explanation for the widespread violence that pervades it. After all, the Jewish haredi society is also afflicted with a similarly low socio-economic status. Indeed, both occupy the bottom rungs of the socio-economic ladder in Israel. However, in both societies, it is their own cultural mores—large families, a single breadwinner—rather than systematic discrimination that accounts for much of the depressed economic levels in both societies. Yet, among the haredim, one does not encounter anything approaching the intra-communal violence or the amassing of deadly weapons that one finds among Israeli Arabs.

    Accordingly, if socio-economic conditions in the haredi community are not caused by structural bias against it, nor have they produced the same rampant crime, why should this be assumed to be the case among the Israeli Arabs??

    Perfidy paraded?

    Indeed, over time there have been repeated examples of the reticence—indeed refusal—of Arab citizens of Israel, no matter how preeminent their standing in society, to accept—never mind respect—the symbols of Jewish sovereignty.

    Thus, an Arab Supreme Court justice refused to sing the national anthem at official events, claiming that the words, underscoring the Jewish nature of the state, were inappropriate for an Arab citizen. Recently, at the swearing-in of the current Knesset, several Arab members made a show of the difficulty they have in pledging their allegiance to Israel and to its laws.

    In recent years, one Arab Knesset member after another has been more than brazen in expressing the overt identification with a chilling range of Israel’s enemies—from Assad’s regime in Syria, through the Hezbollah in Lebanon, to the terror organizations in Gaza and Judea-Samaria—with one being imprisoned for aiding and abetting convicted terrorists and another being forced to flee the country for aiding Hezbollah in times of war—see here for a partial catalog.)

    Murderous “martyrs”

    Such display of alienation—indeed, aversion—to their own state, is not confined to select elites within the Israeli-Arab society. Indeed, when Israeli Arabs perpetrated lethal acts of terror, they were feted as heroes by their kinfolk—who collaborated in hiding them from Israeli authorities. When two of them were eventually located and killed, they were given huge funerals, where they were enthusiastically eulogized by approving mass processions—and lauded as “martyrs for Al-Aqsa” for gunning down two Israeli policemen (from the Druze community) at the Temple Mount.

    The unavoidable conclusion from this dismal record is that Israel has been enormously—and ill-advisedly—tolerant with Israeli Arabs, allowing blatant and barefaced displays not only of disloyalty but of equally brazen identification with Israel’s enemies—even in times of ongoing hostilities.

    Seen in this context, the current revolt is clearly aimed at changing the very essence of Israel as the nation-state of the Jewish people, annulling the very foundation for its establishment and transforming the rationale for its continued existence.

    Accordingly, the situation can no longer be seen as one of centering on the question of individual rights but of collective survival—and it must be treated as such.

    It cannot, and must not, be sugarcoated!

    Time for a sea-change

    The well-known dictum that “Democracy is not a suicide pact” may not be new, but it was never more apt than it is for Israel today.

    No democracy can survive a situation where an entire sector of the population not only rejects the basis for its inception and existence, but significant segments thereof embrace those seeking its destruction.

    Indeed, almost the entire Arab electorate voted for parties that overtly reject Israel as a Jewish state—with many of its elected leaders cavorting with vehemently inimical regimes.

    It is time for an abrupt sea change. It is time to apply the full weight of existing Israeli law against recalcitrant citizens, who chose to collaborate with the country’s foes and imperil the national security of the state and the personal safety of its people.

    The existing penal code in Israel prescribes the most severe penalties for the actions that are being openly committed by thousands of Israel’s Arab citizens -see introductory excerpt.

    And while many may balk at the prospect of wholesale executions and life-long imprisonment as current law prescribes, there should be scant inhibition for the imposition of lesser punishments—such as stripping rebellious Israeli Arabs of the citizenship they do not respect or deporting them from a country with which they do not identify—preferably to one of the egalitarian and non-discriminatory states in the immediate region.

    Any perception of wavering or weakness will be interpreted as a license for further turmoil.

    Indeed, one thing is beyond doubt: If the Jews do not arise and exert their sovereignty over their land, they will lose both their sovereignty and their land.

    Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies

  3. @ Sebastien Zorn:

    According to Caroline Glick, Shaked appointed leftwing judges while appointing only a couple of conservatives.

    Is this really true? Why would she do this? Seems odd that no one has made an issue of this these recurrent elections about this

  5. @ Bear Klein:
    @ Avigdor2:
    Excellent analysis by Martin Sherman of the quagmire we seemed to be embroiled in without end. The judicious recommendations made by Sherman as well as those of both Bear Klein and Avigdor2 display a fundamental sense of basic intelligence and balanced judgement that seems to have been eradicated from beneath the robes of the judiciary in their march towards juristocracy. How many decades must pass before the difficult process of producing a record of state principles is pursued and finally completed. Perfection would not be a requirement, but limits upon the judiciary, specifically, and all branches, generally, would be. It should be redundantly obvious to any camel, cow or crow, with or without robes, that it should be allowed to empower or install into the seats of authority any individual or party that recommends or seeks the ruin of the state – not in the name of justice, equality, or tolerance. Such a decree would be easily assessed by any simpleton as diminishing these same enviable qualities from each member of the state’s citizenry as has been witnessed over this recent period. Furthermore, so empowering such non-state supporters further denies any possible solution when a majority is required and the decision is not overwhelmingly decided amongst the political divide. Regardless of the political landscape, it should not be within the realm of possibilities that the electorate could return to this state of interregnum. The prospect of such a scenario is immoral and impracticable and should be remedied as impossible.

  6. @ Bear Klein:
    Bear Klein and Dr. Sherman are both on spot. The Supreme Court has gone overboard in sustaining unqualified candidates for Knesset membership. The Knesset itself is another issue, of course. The knesset also swears to uphold and defend the State of Israel and those Knesset members who are acknowledged anti-Zionist (read anti-semitic) should be removed from the Knesset and charged with criminal punishment.
    Avigdor2

  7. Good insight and good article.

    In addition Israel needs electoral reform which would be best served by a constitution which specifies the limits of power between the branches of government plus electoral reform including direct election by district of MKs for half of the Knesset, direct election of the Prime Minister for a four years term. There should be a professional cabinet that is selected by the Prime Minister whose members should not be part of the Knesset. If they are MKs they would need to resign from the Knesset and be replaced. Only the Prime Minister should be both a Knesset member and a member of the government.