The Knesset is fighting back in defense of democracy

Democracy Fights Back

By CAROLINE B. GLICK, JPOST

Not only do Israel’s judges appoint themselves, they have empowered themselves to cancel laws of the Knesset.

Last Thursday, in an address before the Association for Public Law’s annual conference at the Dead Sea, Supreme Court President Dorit Beinisch launched an unhinged attack on the Knesset and the government.

Beinisch accused Israel’s elected officials of “inciting against the judges” through their proposed legislation that would place minimal constraints on judicial power.

In her words, “For the past few years a campaign has been waged that is gaining strength whose goal is to weaken the judicial system and first and foremost the Supreme Court. This is a campaign of delegitimization being led by a number of politicians, members of Knesset and even government ministers. They provide the public with incorrect and misleading information that has deteriorated into incitement directed against the court, its members and its judicial work.”

Beinisch claimed that the attempts by Israel’s elected leaders to curb judicial power places the country on a slippery slope whose ultimate end is to destroy the values that underpin Israeli democracy. After she stepped down from the podium, her associates briefed journalists without attribution that Beinisch believes that the bills being debated are comparable to Nazi legislation barring Jews from the public square.

Since Beinisch’s professional godfather, retired Supreme Court president Aharon Barak, enacted his “judicial revolution” in the 1990s, Israel’s judicial system has been without parallel in the Western world. Under Israel’s judicial selection system, judges effectively appoint themselves. And since Barak’s presidency of the Supreme Court, justices have used this power to ensure ideological uniformity among their ranks. Jurists opposed to judicial activism have been largely blocked from serving on the High Court, as have jurists with non-leftist politics.

Not only do Israel’s judges appoint themselves, they have empowered themselves to cancel laws of the Knesset.

Under Barak’s dictatorial assertion that “everything is justiciable,” the Court has given standing to parties that have no direct – and often no indirect – connections to the subjects of their petitions. In so doing, the Court has managed to place itself above the government and the Knesset.

In recent years, the Court has canceled duly legislated laws of the Knesset and lawful policies of the government and the IDF. Its decisions have involved everything from denying Jews the right to build Jewish communities on Jewish land, to requiring the state to compensate Palestinians for damages they incur while fighting Israel, to changing the route of the security barrier, to barring radio broadcasts by the right-wing Arutz Sheva station.

The Knesset’s efforts to pass laws that would curb the Court’s now unlimited powers are simply attempts to place minimal legal checks on judicial power. One bill under discussion would require Supreme Court nominees to undergo hearings at the Knesset before their nominations are approved. Under the proposed law, the unelected Judicial Appointments Committee would remain responsible for nominating and approving justices.

It’s just that the public, through its representatives in the Knesset, would have the opportunity to find out a bit about who these people are before their appointments are voted on.

Another proposed law would seek to water down the legal fraternity’s control over judicial appointments by making a slight change in the composition of the Judicial Appointments Committee.

If both of these laws passed tomorrow, Israel’s Supreme Court would still be more powerful than any other Supreme Court in the Western world. The government would still have nearly no say in who gets appointed to the bench.

Yet Beinisch and her associates have no interest in considering the substance of the bills being debated. For them the very notion that mere politicians dare to consider placing any check on judicial power is such an outrage that they feel justified equating the initiatives with the Nuremburg Laws in Nazi Germany.

BEINISCH IS not alone in her campaign to demonize politicians who question Israel’s out-sized judicial dictatorship. Attorney-General Yehuda Weinstein has used his powers of office to intimidate and threaten Prime Minister Binyamin Netanyahu and his government into backing away from all the proposed bills aimed at curbing judicial power.

Speaking at a legal conference in Eilat last Tuesday, Weinstein bragged that he forced Netanyahu to table discussion of the bill that would require Knesset hearings for Supreme Court nominees. As he put it, “When the law that would institute a hearing came to my attention, I called the prime minister and told him that this bill will not pass and must be eliminated now and immediately.”

After relating that Netanyahu responded that he would end discussion of the bill, Weinstein proclaimed that anyone wishing to reform the judicial system would find in him “a bitter, stubborn enemy.”

This week, Weinstein struck again. On Tuesday, he sent a letter to Netanyahu in which he demanded that the premier drop discussion of a Knesset bill that would restrict foreign governmental funding of Israeli-registered political NGOs. Weinstein informed Netanyahu that he would refuse to defend the law when it is challenged before the Supreme Court because he considers it “unconstitutional.”

Faced with Weinstein’s threat, on Wednesday Netanyahu’s office told the media that the prime minister has decided to postpone discussion of the bill. Until Wednesday, Netanyahu had openly supported one of the versions of the proposed law.

Weinstein’s decision to constrain Netanyahu’s governing authority is not new. In January, after the Government Appointments Committee approved Netanyahu and Defense Minister Ehud Barak’s decision to appoint Maj.-Gen. Yoav Galant as IDF chief of staff, and after the government approved his appointment, Weinstein informed Netanyahu that he would refuse to defend Galant’s appointment before the High Court.

A previously unheard of NGO called The Green Movement had petitioned the Court demanding that it cancel Galant’s appointment. Galant had wrongly used state land adjoining his homestead on Moshav Amikam. And the Green Movement claimed that this administrative infraction rendered him unfit to command the army.

It is impossible to know how the Supreme Court would have ruled on the Green Movement’s petition. On its face it was fatuous given that Galant’s behavior constituted an administrative offense for which one pays a fine, rather than a criminal offense for which one goes to jail.

In the event, the Court never considered the petition because Weinstein told Netanyahu that due to his own “ethical” misgivings, he would refuse to defend Galant’s appointment. Left without legal defense, Netanyahu gave in to Weinstein and canceled Galant’s appointment.

In openly undermining the Knesset and the government, Weinstein is behaving in a manner that is contrary to the law. Israeli law prohibits government officials from undermining the lawful functioning of both elected arms of government.

And yet, in the name of protecting democracy, or protecting the constitution, (Israel has no constitution), Weinstein openly flouts the authority and rejects the prerogatives of the people’s elected representatives in the Knesset and the government.

And he is not alone. In February, the Knesset passed a law requiring NGOs to publish on their websites quarterly reports on all the contributions they receive from foreign governments. Ten months later, the law has yet to be implemented.

The delay is due to the fact that the Justice Ministry has not bothered to publish the law’s accompanying regulations. Without such regulations, the law cannot be implemented.

ON THE face of it, Beinisch’s and Weinstein’s vociferous opposition to attempts to constrain foreign government funding of Israeli-registered anti-Israel NGOs makes little sense. Why would they stick their noses out for groups like B’Tselem or Yesh Din or Adalah that seek to delegitimize Israel’s right to defend itself, or support economic and legal warfare against the country? Why are they sticking their noses out for these radical, anti-Zionist groups? Upon consideration, however, the reason is clear. The Court’s ability to dictate government policy is dependent on the existence of these political NGOs. The Court cannot constrain IDF counter-terror operations if it isn’t asked to intervene by NGOs. And the attorney-general cannot scuttle legislative initiatives or government policies or appointments if he cannot assume that his colleagues in the NGO sector will challenge those initiatives and policies before the Court.

Lawsuits are an expensive business. To continue their legal campaigns against the prerogatives of the government and the Knesset in the High Court these NGOs require enormous budgets.

Without foreign governmental funding, the likes of Peace Now, Adalah, Ir Amim, Gush Shalom, B’Tselem and others would be forced to curtail their legal campaigns against the state.

So Beinisch’s and Weinstein’s attacks on politicians who introduce bills to curb foreign governmental funding of these political NGOs are perfectly reasonable. No, in protecting these groups they are not demonstrating their commitment to civil rights. They are the judicial equivalent of street toughs, protecting their territory.

It is important to note that the legal fraternity would never be able to maintain its choke-hold on the government and the Knesset without the active support of the media. Although Beinisch claimed last week that some media institutions are active participants in the politicians’ supposedly nefarious propaganda war against the Supreme Court, the fact of the matter is that Israel’s mainstream media is the legal fraternity’s most fervent defender.

Since Barak began his judicial revolution in 1995, the media have portrayed the Supreme Court’s usurpation of the powers of the Knesset and the government as acts of enlightened guardians of democracy. Radical commentators like Moshe Negbi and Dana Weiss have attacked as anti-democratic all politicians and legal experts who criticize the Court’s runaway judicial activism. In recent months, the media have demonized Knesset members like Yariv Levin and Ze’ev Elkin from the Likud and Faina Kirschenbaum from Israel Beiteinu as enemies of democracy for their leadership in pushing judicial and NGO reform laws through the Knesset.

For the past decade and a half, the Court’s undermining of Israel’s elected leadership has weakened democracy and subverted the public’s will. Over the past decade, Israeli voters have rejected overwhelmingly radical political parties like Meretz. But through the Supreme Court and the legal fraternity, their allied foreign government- funded Astroturf pressure groups, and the supportive media, the values and views advocated by Meretz have been forced down the public’s throat over and over again.

And now, for the first time, in recent months our elected representatives have launched a brave and concerted effort to reinstate the sovereignty of the Knesset. Their modest initiatives are aimed at restoring the power of the people through our elected representatives to determine the course of the country and to implement policies that reflect our interests and our values.

The incendiary howls of the likes of Beinisch and Weinstein show us that these initiatives are well-placed. After years of constant attacks on our democratic system, the powerful legal fraternity is finally on the defensive.

This fight could not be more important to the well-being of this country. Now is no time for our leaders to go wobbly.

caroline@carolineglick.com

December 9, 2011 | 4 Comments »

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4 Comments / 4 Comments

  1. Many of us have tried for years to expose and defeat the Peresitic infestation of all levels of government. We have identified clearly that the condition cannot be “repaired from within”.
    The people must take resolute actions and lance the boils while FREELY electing a new system of government and representatives. Most of the present ones must be set aside, some of them pending judicial actions dispensed by ELECTED judges approved by the Knesset.
    The PEOPLE must be motivated to raise to the call, but it will not be done without AM & FM RADIO and TV stations totally dedicated to a true return to democracy.
    We must expect violent reactions from the cadres controlling the State.

  2. TW is putting the cart before the horse. Disingenuously he uses incidents that would seem to indicate that the government is impotent to uphold Zionist interests while neglecting to mention the REAL reason the government has taken those stances. The reason of course is that the traitors in the judiciary and the leftist media have undermined the ability to carry out the proper remedies by the very government he criticizes! He sets up a straw horse and then pummels it to death.
    Too much power today lies in the hands of unelected individuals who are more enamored if their own ideologies and ability to see where this will eventually lead.
    TW refers to what happened in Nazi Germany. He maintains that an impotent judiciary was responsible for the rise tom power of Hitler. He has completely distorted history to his own ideological ends. In Germany the judiciary was in league with the far right. Thousands of lawyers joined the Nazi party. After all these lawyers were part of the middle class whose wealth and esteem had been eviscerated by Germany’s defeat. It was this middle class that firmed the backbone of the Nazi party. What good is an “independent” judiciary if this same judiciary is part of the problem?
    The same thing is happening, or us in danger if happening, in the USA. the Left, after many years of defeat is attempting to take power through the back door by taking over control of the nation through the infiltration of the judiciary, the media, and the educational system. This cannot be allowed to happen.
    All over the world the true interests of the people are being subverted by elites consumed by their own sense of righteousness.
    We must return power to the ELECTED representatives of the people before it is too late and wake up one day to discover that our freedoms have disappeared completely.

  3. This picture of government helplessness is just not believable.

    The government routinely makes attempts at doing what is right, only to retreat at the first obstacle. It’s all nothing but a show.

    The government’s main goal is not to fulfill the agenda they promised the voters, but to stay in power. Just ask Likud MKs what happened to their party platform. You get the strangest replies.

    ~~~~~~~~

    Glick is an astute analyst but she consistently gives the PM the benefit of the doubt, blames others for his bad policies (Obama, the Israeli left, the Arabs, etc.) and now presents him on this piece as a well-intentioned but helpless leader. What other option could he have but retreat…

    Only on her last sentence she adds a soft admonition to “our leaders not to go wobbly”.

    Wobbly!

    ~~~~~~~~

    Another issue that’s hardly ever mentioned:

    We are painfully familiar with the historical background of the Nazis’ rise to power. Why – we ask – didn’t the German people stop them? Why didn’t they rebel against the first abuses of human rights? Why were they mere bystanders?

    Same thing is happening in Israel these days. This year alone there has been a string of outrageous anti-Jewish acts and policies, and the reaction from the population has been either mild or non-existent.

    A few examples:

    – The middle-of-the-night violent expulsions of Jewish families from their homes, along with the razing of their houses and belongings.

    – The release of over a thousand terrorists in exchange for one Jewish soldier – after years of government refusal to seek other options to obtain his freedom.

    – The constant Arab harassment and violent attacks against Jews in Jerusalem, Judea and Samaria and other areas. Sadly, when an Arab mob attacks Jews, it’s the Jews who get charged and arrested. The government seems to be discouraging any act outside the TACIT DHIMMI LAWS in effect in Israel.

    – And just this week Arutz Sheva reported that eleven-, twelve- and thirteen-year old Jewish girls are being “married” to Arabs in the Galilee. And guess what? Authorities are helpless and won’t even attempt to rescue them. In any other country they would charge the perpetrators with kidnapping and rape. Not in Israel.

    http://www.israelnationalnews.com/News/News.aspx/150503

    Where’s the population outrage at all this? Is there a climate of fear in the country? Or just plain old apathy? Are they mere bystanders?

    Mere bystanders as a small elite rules the country with dictatorial zeal, allowing the Knesset only a quaint institution aimed at keeping the pretence that Israel is a democratic country?