By Bill Narvey, Jewish Israel News & Views
April 20th, 2012?
Some Thoughts on Justice Minister Yaakov Neeman’s Proposed Bill to Add a 15th Law to ?Israel’s Existing 14 Basic Laws
On April 19th, 2012, Ted Belman posted a brief article by Jonathon Lis entitled Israel’s Justice ?Minister defends bill allowing MKs to bypass High Court. Lis’ article briefly described ?Neeman’s proposed bill and made some reference to the controversy it has generated between ?Neeman and his supporters and Israel’s left wing. Belman prefaced this article with his own ?comment, all of which is posted under the title In a democracy, power rests with the people ?and not the Courts
Belman sees some parallels between Canada’s efforts to repatriate its constitution from Britain ?which until that event occurred, had sole and final authority when it came to any constitutional ?amendment, Canada’s notion of Quebec being a distinct society and Neeman’s effort to ?incorporate a new 15th law into Israel’s 14 Basic Laws, which appears primarily concerned with ?enshrining a balance between government’s/ Knesset’s power and authority on the one hand ?and Israel’s Supreme Court on the other.?
Neeman’s proposed 15th Basic Law also appears to seek to give sole authority to the ?government/Knesset when it comes to policy given the force of law to address and deal with ?certain internal and external challenges of critical importance to Israel’s security and well ?being.?
While there may be some parallels Belman has alluded to, they are substantively different both ?in intent and the historical and present circumstances Neeman is seeming to address and deal ?with.?
Two similar circumstances in Canada and one in the U.S. that will be later dealt with, do ?coalesce in some measure with what Neeman is seeking to achieve in relation to curbing the ?power and authority of Israel’s liberal-left leaning activist court and enabling Knesset to again ?pass a law that will be valid in spite of that same law being ruled unconstitutional by Israel’s ?Supreme Court.?
?1.? The Patriation of the Canadian Constitution and the Idea of Quebec being a Distinct ?Society
The Canadian historical political/societal experience, situation and circumstances back in the ??1970’s when the effort to patriate (not re-patriate) its constitution from Britain differ markedly ?from Israel’s.?
The initiative to patriate Canada’s constitution was under then Liberal PM Trudeau, a federalist. ?Part of his initiative was to first have a Bill of Rights, dealing more specifically with federal ?rights and powers vs. provincial rights and powers as well as individual rights agreed on ?between the Federal government and the provinces. On achieving that, Britain was called on to ?amend Canada’s constitution to incorporate that Bill of Rights into the Constitution and then to ?relinquish any authority of the new and expanded constitution in favor of Canada.?
The patriated Canadian constitution did give power and authority to the judicial branch of ?government to rule on the constitutionality of Federal and provincial laws, with the ultimate ?arbiter of the constitutionality of Canada’s laws resting with Canada’s Supreme Court.?
The Canadian Constitution does not give Quebec constitutional authority to proclaim itself and ?be a legally recognized distinct society. It has however, been so politically recognized by the ?Federal and other provincial governments in many ways. The roadblock to so constitutionally ?recognizing such status for Quebec was that the other 9 provinces feared Quebec would use ?that constitutional recognition and the power and authority it entailed to gain rights and ?privileges not available to the other provinces. Further, the concern was that Quebec would ?use such constitutional authority to solidify the position Quebec separatists were then ?advancing based on a sense of Quebec nationalism that began in the 1950’s and grew from ?there and to that end, have a constitutional basis to separate from Canada and declare itself an ?independent state.?
The consequences of Quebec separating were enormous and threatened Canada’s ability in ?such circumstances to remain a nation.?
Federal initiated efforts to have the Canadian constitution further amended after patriation to ?incorporate a “distinct society” provision in favor of Quebec by way of 1st the Meech Lake ?Accord and thereafter, the Charlottetown Accord, failed. To this day has not signed onto the ?Canadian constitution, though it practically recognizes that authority when it serves their ?purposes.?
The separatist movement, while still alive in Quebec, has lost much of its steam as Quebec has ?found that it has gained much advantage and privileges under our Federalist system.?
As regards Israel being a Distinct Society, that is covered in one or more of the 14 Basic Laws ?that declare Israel to be a Jewish and Democratic state. ?
Issues as regards Palestinian nationalism and self determination differ in just about every ?material particular. ?
Quebec was since 1967, part of Canada and in the 1970’s – 1980’s was actively seeking to ?separate and be an independent nation on land it inhabited. The history and issues that ?presaged and remained in that regard was far different than the history of Palestinians and the ?rise of their own nationalism and desire of self determination. ?
No foreign nation was pushing Quebec to separate for the purpose of harming and destroying ?the rest of Canada, though such separation would in the result be harmful, if not destructive of ?the remaining provinces ability to remain a Canadian nation.?
The situation as regards Palestinians, their intractable hatred and enmity of Jews and Israel and ?their 1st allowing themselves to be the witting tool of the Arab nations in their effort to weaken ?and ultimately destroy Israel in stages , but more recently taking on that goal for themselves is ?a vastly different historical situation than contrasted with Quebec’s desire to be a “distinct ?society”. ?
?2.? Ideological Judicial Activism of the Israeli Supreme Court
Whether Canada’s Supreme Court should have that power and authority over Parliament and ?provincial legislators, appears not to have been a big issue. Our judiciary historically were ?seen as relatively impartial when it came to ruling on legal issues that came before it.?
This reality of Canada’s judiciary being less influenced by political ideology and more faithful to ?jurisprudence and legal principles, was then and still is the Canadian reality which still stands in ?stark contrast to the American experience where Americans and their governments have ?created an ideological battleground within their judicial system right up to and including their ?Supreme Court.?
As regards Neeman’s proposed 15th Basic Law, it appears to be an effort to correct an ?imbalance as between the legislative power and authority of the Knesset and Israel’s judiciary ?and Supreme Court in particular. ?
In terms of the essential proposal that the Knesset be legislatively empowered to re-enact a law ?previously found unconstitutional by the Supreme Court, it is an interesting after the fact ?approach, whereas the Canadian constitution has a before the fact approach to enabling it to ?pass legislation that in some fashion does offend Canada’s constitution.?
To that end, the Canadian constitution has what has been referred to as the “notwithstanding ?clause”.?
Simply put, the government can pass legislation that offends the constitution in some particular, ?provided that law specifies that the law is passed, notwithstanding some particular ?constitutional right or power. Such notwithstanding clause legislation applies only to certain ?constitutional rights and powers and it is to be time limited. The government of course at the ?expiry of the temporary enactment, can if the situation, that law was intended to address ?remains, can again pass the law for another temporary period of time.?
It seems Canada’s notwithstanding clause would be a more practical and efficient way to deal ?with the concerns Neeman is addressing. ?
Neeman’s proposal contemplates having to invest time and effort in the Knesset to get a law ?passed that the government deems necessary to address some critical issue or challenge, only ?to have to revisit that whole exercise if that law is ruled invalid by the Supreme Court and the ?critical issue remains.?
If Neeman were to amend his proposed bill to incorporate a “notwithstanding clause”, then the ?government/Knesset could deal with the wisdom of a law that a particular situation demanded, ?but which law in order to address the situation, would be contrary to right that would otherwise ?be protected. ?
Not only would such “notwithstanding clause” approach save the government a lot of time and ?effort, it would drastically reduce delay in dealing with an extant problem that needed ?immediate attention.?
The 2nd concern Neeman’s proposal seeks to address is that the Israeli Supreme Court has been ?accorded ultimate authority to determine the legality or illegality of a Knesset enactment. If ?the Supreme Court were balanced and not ideological as Canadian courts are in the main, the ?problem Neeman seeks to deal with would not be nearly as great and perhaps never would ?have arisen
The problem however is that the Israeli Supreme Court has gone beyond the traditional role of ?interpreting and applying the law as it is. Instead, it has been in the business of making new ?law and as such has earned its reputation as being an activist court. ?
Ordinarily, enactment of laws is the sole purview of the legislative branch of government. The ?role of the courts is to determine whether that Knesset enacted law is constitutional or lawful, ?based on jurisprudential analysis and past legal precedent.?
The Supreme Court, before known as the Barak court and now the Dorit Beinish court have ?been often accused, mostly by conservatives and the right, over successive past Israeli ?governments as being an ideologically liberal-left leaning activist court that has subverted the ?Knesset’s power and authority to make new law. ?
Even under PM Olmert, in spite of his being left leaning, he too found Israel’s Supreme Court ?too activist for his taste and too often seeming to be involved in subverting certain ?government/Knesset efforts to pass laws that were intended as an extension of government ?policy to meet and deal with internal or external certain challenges. ?
Olmert appointed a new Justice Minister, Friedmann to deal with the problem, but whatever ?Friedman may have done to restrain the Barak court’s judicial activism, obviously was not ?enough. ?
Earlier this year, the government sought to pass law that would allow the government to have ?some minor input in the appointment of new judges to the Supreme Court. That effort too, ?does not seem to have been proceeded with by the Knesset, due to objections by the court and ?the efforts liberal-left objectors.?
Now, Justice Minister Neeman is taking a run at the problem the Israeli government and ?Knesset have with being undermined by the Supreme Court’s judicial activism to the extent the ?government and Knesset seek to put policy it deems necessary as regards particular internal ?and external challenges, into law.?
As regards the issue of judicial activism, as noted in the U.S., the judicial system, especially at ?the appellate levels including the Supreme Court, have been and remain an ideological ?battleground. ?
Confirming that situation that marks the U.S. Judicial system, the media, relying on informed ?pundits and legal scholars all have weighed into how the Supreme Court will rule as regards ?the recent hearing into the constitutionality of Obama Care. ?
All predict the court will rule 5 to 4 in favor or against the constitutionality of Obama Care. The ?deciding vote in that regard is predicted to fall to SC Justice Kennedy, who has been known to ?swing to the liberal left or conservative right side of the bench on various issues, unlike the ?other 8 justices that can virtually be counted on to equally divide between voting on the liberal ??– left or conservative – right side of an issue.?
The situation of judicial activism based on ideological lines is exacerbated in Israel because the ?Israeli Supreme Court has been under past governments, weighted with liberal-left leaning ?judges. ?
The process of judicial appointment has been imprudently left in the hands of the court. Thus ?the Supreme Court has been vested with the ability to determine itself which judges will be ?appointed and in that fashion, assure that the Israeli Supreme court remains a self perpetuating ?dynasty of ideologically liberal-left activists, just as former Chief Justice Barak ensured it was ?and would be.?
It is no wonder that the left scream that Neeman’s proposed 15th Basic Law will be the death of ?democracy. ?
It is of course hysterical hyperbole. The liberal-left know however, in their head and gut, if ?Neeman’s proposed bill for a 15th Basic Law is passed in the Knesset, they will lose a very ?significant advantageous edge they have had to advocate, undermine, weaken and sometimes ?defeat government policy and efforts to legislate those policies, that offend their liberal-left ?ideological sensibilities and agendas.?
The liberal left thus does not want a balance struck between the power and authority of ?government/Knesset and the Supreme Court. ?
What the liberal-left want is to keep their edge and have that edge continue to be protected by ?a liberal-left activist Supreme Court. ?
Further, the liberal-left do not want government/Knesset to be have ultimate power and ?authority in establishing policy, enforced by the weight of law, that seeks to deal with critical ?internal and external challenges to Israel’s best interests, her character as a Jewish and ?democratic state, her well being, security and indeed national aspirations that are existentially ?threatened. ?
The reason for the liberal-left’s concern in this regard is that they have before challenged the ?government/Knesset’s position in that regard. If the government/Knesset gain such authority ?and power over the Supreme Court, the liberal-left fear they will lose their ability to see their ?own ideological dreams for themselves and Israel realized. ?
Those then are the power struggle battle lines drawn between Neeman and his supporters of ?his effort to address and correct the imbalance between government/Knesset and the Israeli ?Supreme Court and those on the Israeli liberal-left that don’t want balance because such ?balance would mean giving up the significant edge they have that has been until now protected ?by the ideologically liberal-left leaning Supreme Court. ?
Bill Narvey
@ yamit82:
You have great-grandchildren???
@ honeybee:
Why not?
Place the cursor (black arrow controlled by mouse) just in front of the first character of whatever you want to copy, and click there; then shift-click just after the last character you want to copy; or (alternatively) you can click in front of the first character, and hold down the click while you drag the mouse from there to the last character you want to copy (then release the click) — either method will highlight the material you’re interested in.
Then place the cursor on the highlighted material, and right-click it; that will drop down a MENU which includes “copy,” “cut,” “paste,” etc.
Left-click on “copy,” then put the cursor wherever you want to copy it TO; then right-click AGAIN there (at the new location) for the drop-down menu, this time selecting “paste.” And you’re done. (There are other methods, as well as variations for a whole line or a whole paragraph, etc., but this should hold you for now.) Try it out.
@ yamit82:
“EVERY LEADING AUTHORITY” for whom? — orthodoxy?
But you still haven’t answered my original question: “Are you prepared to demand that the oral tradition be MADE part of scripture?” — Yes or No?
@ yamit82:
Neither quoting scripture nor summarizing it constitutes a response to the challenge I issued above.
I repeat once again:
If you genuinely believe that the oral ‘law’ is part of the Book, then are you prepared to demand that the oral tradition be incorporated in scripture?
— Yes or No?
It’s a simple, straightforward question, Yamit. Are you refusing to answer?
.
@ yamit82:
Is cotton like wheat where it itches so bad ,askes TX. He use to shuck corn by hand and was all bit up by scorpions.
@ yamit82:
I was just wondering if I didn’t have either a chupah or a Rabbi I could be living in sin. Could add a very little spice to my life.
Crazy or sincere, “love doth make fools of us all” . I know several poems but still can’t cut or paste.
honeybee Said:
How should I know? When I got married the Kibbutz had to bribe the rabbi to make sure he never questioned my Jewishness. I was and had letters to prove it but nobody asked for it, the kibbutz gave the town rabbi several commercial cans of processed olives. 2 witnesses were required to vouch for me and two guys I never saw in my life signed on that they knew me and my family and we were as Jewish as the rabbi himself.
I suppose they figure when all is said and done if someone is willing to come and live in Israel and marry here they are either crazy, sincere or both.
honeybee Said:
Drove a cotton picker and moved irrigation pipes. Hate raw cotton itches like crazy.
@ yamit82:
If your married by a judge ,in a jacket dress you bought on sale, can you still be a Jew?
dweller Said:
All of them do and so do the grandchildren.
@ dweller:
Judges and Sages Commanded to Interpret the Bible
Moses was commanded to appoint seventy elders to help him rule over the people (Numbers 11:16).
There also existed a hierarchy of local judges over tens, hundreds, and thousands (Exodus 18:21).
Any case too difficult at one level would be passed on upwards (Exodus 18:26).
As in any legal system over time a body of precedents and legal principles developed telling in detail how the Commandments were to be put into practice.
[In point of fact most of the Rabbinical injunctions are hinted at in the written Scriptures according to grammatical niceties and quirks of the Hebrew Language. A good portion of the Talmud is dedicated to clarifying the Law according to what the Biblical verses indicate.
Even if this was not so however we would still be obliged to do as the Rabbis say.]
In case of doubt the Israelites were commanded to go to the authorities and Sages that would exist in their time.
[Deuteronomy 17:8] IF THERE ARISE A MATTER TOO HARD FOR THEE IN JUDGMENT, BETWEEN BLOOD AND BLOOD, BETWEEN PLEA AND PLEA, AND BETWEEN STROKE AND STROKE, BEING MATTERS OF CONTROVERSY WITHIN THY GATES: THEN SHALT THOU ARISE, AND GET THEE UP INTO THE PLACE WHICH THE LORD THY GOD SHALL CHOOSE;
In case of doubt concerning any matter of the Law and its practical implications one had to make an effort (“ARISE”) and go to the recognized authority that existed.
[Deuteronomy 17:9] AND THOU SHALT COME UNTO THE PRIESTS THE LEVITES, AND UNTO THE JUDGE THAT SHALL BE IN THOSE DAYS, AND ENQUIRE; AND THEY SHALL SHEW THEE THE SENTENCE OF JUDGMENT:
[Deuteronomy 17:10] AND THOU SHALT DO ACCORDING TO THE SENTENCE, WHICH THEY OF THAT PLACE WHICH THE LORD SHALL CHOOSE SHALL SHEW THEE; AND THOU SHALT OBSERVE TO DO ACCORDING TO ALL THAT THEY INFORM THEE:
[Deuteronomy 17:11] ACCORDING TO THE SENTENCE OF THE LAW WHICH THEY SHALL TEACH THEE, AND ACCORDING TO THE JUDGMENT WHICH THEY SHALL TELL THEE, THOU SHALT DO: THOU SHALT NOT DECLINE FROM THE SENTENCE WHICH THEY SHALL SHEW THEE, TO THE RIGHT HAND, NOR TO THE LEFT.
Even if one went to the Sages to decide how a commandment should be carried out and did not agree with what the Sages said you still had to obey them. This was the commandment.
[Deuteronomy 17:12] AND THE MAN THAT WILL DO PRESUMPTUOUSLY, AND WILL NOT HEARKEN UNTO THE PRIEST THAT STANDETH TO MINISTER THERE BEFORE THE LORD THY GOD, OR UNTO THE JUDGE, EVEN THAT MAN SHALL DIE: AND THOU SHALT PUT AWAY THE EVIL FROM ISRAEL.
[Deuteronomy 17:13] AND ALL THE PEOPLE SHALL HEAR, AND FEAR, AND DO NO MORE PRESUMPTUOUSLY.
The Ten Tribes were Exiled for Inventing their own Religious Beliefs!
dweller Said:
What is Judaism?
According to EVERY LEADING AUTHORITY Judaism IS the belief and practices that either stem from the written or the oral law.
The written law is our foundation for belief and practice. What the almighty expects us to believe and do. Within those five books is also the sanction for a court to guard and explain the laws contained in the 5 books. This is what is known as the oral law or rabbinic law.
Basic principles of the halachic system: The Torah (5 books) has full authority to institute belief and practice in the life of every Jew. The oral or rabbinic law only has authority to establish practice not belief and then only if it does not contradict the written law. Every thing a Jew does or believes must stem from either the 5 books of Moses or the oral law based on the rulings of the great court (Sanhedrin).
@ yamit82:
Your prejudices are inherent in your assumption that all other than orthodox approaches to the faith constitute nothing more than “substitutes” for what you call “halachic Judaism.”
Yet even your use here of the term halachic Judaism, shows — by your assigning “Judaism” a modifier [“halachic”] — that even YOU recognize the truth of my remark.
My challenge remains unanswered:
If you genuinely believe that the oral ‘law’ is part of the Book, then “Are you prepared to demand that the oral tradition be MADE part of scripture? — put up, or shut up.”
Not so. Hans was Bar Miztzvah.
He dabbled w/ a variety of churches, yes, but they all insisted on the divinity of Christ, and he couldn’t accept that. “I cannot adhere to any Christian church since I do not hold that Jesus was God.”
He also became a suicide, at 40
— when he learned of the OD death of his sister Paulina, who’d been was afflicted with a mental disorder.
Herzl’s younger daughter, Trude, died in a concentration camp.
But if you assume that this is all the direct result of their failing to accept “halachic Judaism,” you are overlooking a lot.
Herzl himself died at 44.
A kid needs a father (or somebody to play the role) while he/she’s growing up.
Certainly there are kids who (appear to) get by without one
— but don’t go visiting the Vegas odds-makers over that — unless you’ve got piles of scratch to spare.
Hans was 14 when his father died.
How many of yours will?
@ dove:
One needn’t be an antisemite to see that you’re paranoid; sticks out all over you like quills on a porcupine.
And your calling me an “antisemite” is clearly an appeal for support from other posters here.
Just remember, Dove, there are only so many times a person gets to insincerely cry ‘wolf!‘
— Then their credibility dies.
Oh? — and I s’pose haShem whispered that little sweet nothing directly in your ear, did He, as you were dropping off to sleep?
Or maybe you got a special memo from the Home Office?
I’m 100 percent Jew by birth.
100 percent Jew by training.
100 percent Jew by inclination.
Always have been.
Never haven’t been.
And all the King’s horses and all the King’s men will never be able to wipe out a word of that.
Sorry to disappoint you, but those are the facts
— live with ’em.
So? — Like I shouldn’t act confident even if I am? — like I should stand idly by when I see idiocy in print, and not challenge it?
False modesty is bullshit; fundamentally dishonest.
You’re just trying to silence me, Dove, with that rot — because, for better or for worse, I represent your own burgeoning awareness
— which you are trying desperately to crush.
Forgot WHAT already?
Forgot that you’ve made this phantom accusation more than half-a-dozen times? — Hardly.
Forgot that you never backed it up on one single occasion with anything concrete by way of illustration? — Certainly not.
But then, that’s your style, isn’t it? — long on claims, short on facts.
Why don’t you answer the friggin question & dispense with the childish evasions :
“WHAT ‘horrible statements’ regarding the holocaust are you talking about? — What was ‘horrible’ about them? — explain, and be specific.”
TX says he prefers cattle to cotton any day so much less work and a little soap and water takes care of the smell@ honeybee:
@ dweller:
That is a typical remark that an anti-Semite would make.
You are not a Jew. I do not go on to xtian sites and act like some high and mighty (jesus/paul) know it all (even tho I am but I do try to downplay it and not flaunt it) 🙂
You forgot already?
yamit82 Said:
So your a cotton chopper, doesn’t sound like you. Did you pick or pull?
yamit82 Said:
Klutz
@ yamit82:
yamit82 Said:
I don’t mind the smell of cattle or horses.
@ honeybee:
No my wife wouldn’t let me it stinks too much. I worked in the cotton fields