Our World: The judicial overthrow of democracy

Ideological conformity and anti-democratic tendencies plague the legal system.

By CAROLINE GLICK
June 19, 2006 21:25
glick 88

glick short hair 88. (photo credit: )

Sunday morning Israel Radio reported that a delegation of judges met with Justice Minister Haim Ramon and demanded that he defend them from what they consider to be unprecedented media attacks against them. The meeting with Ramon took place on the same day the Supreme Court went a step further in its usurpation of the power of the people's elected representatives in the Knesset to set the law of the land. In yet another breathtaking act of judicial legislation, the Court Sunday demanded that the Knesset show cause why its 2004 law permitting the operation of privately run prison facilities does not breach the Basic Laws regarding individual rights and the delegation of powers by the government. In so acting, the Court effectively named itself the ultimate arbiter of the wisdom of Israel's economic policies as set by the people's elected leaders in the government and the Knesset. This it did on the basis of a petition from a group of law teachers who in any normally functioning democracy would have no standing before the Court because they are neither directly nor indirectly impacted by the law. The justices' demand for Ramon's protection from criticism also came the same day that Justice Ayala Procaccia overturned the rulings of two lower courts to free a 14 year-old girl from Hebron who was arrested last week while protesting in Hebron. Procaccia ordered that the girl be kept in jail until the completion of proceedings against her. This is the same Justice Procaccia who last summer ordered that three other girls aged 13, 14 and 16, Moria Goldberg, Chaya Belogrodsky and Pnina Ashkenazi be held in jail until the completion of proceedings against them for their "crimes" of protesting the expulsion of Israelis from Gaza. They were held in jail for three months even though the maximum sentence for the charges they were being held for was a monetary fine. At the time, Procaccia announced her agreement with the State prosecutors' view that the girls constituted a "danger to the society because of [their] ideological motivation." It is unclear whose criticism the judges want to be protected from. Perhaps the judges sought Ramon's protection from their own colleagues on the bench. Last month in an interview with Haaretz, retiring Justice Mishael Cheshin had this to say about Chief Justice Aharon Barak's view of human rights: "He is ready for 30, 50 people to be blown up - but we will have human rights." Of Barak's view of the Court's oversight of the Knesset Cheshin said, "For Barak, if the Knesset passes a law by a majority of a hundred to two, he can come and assert that the law is annulled." Cheshin attacked his colleagues on the Court collectively when he strongly hinted that his fellow justices' political views were what kept them from overturning Attorney-General Menachem Mazuz's decision last year not to indict then prime minister Ariel Sharon and his son Gilad on corruption charges. Of Mazuz's decision to close the investigation of the so-called Greek Island affair Cheshin said, "I can say only that when someone gets $600,000 and the promise of $2 million more for surfing the Internet, [Gilad Sharon's payments from businessman David Appel] one has to be a fool to think that he really received the money for that work." Of his colleagues' decision not to overturn Mazuz's decision he noted, "If Sharon had stood trial, there would have been no disengagement [from Gaza and northern Samaria]. SADLY, THE ideological conformity and anti-democratic tendencies that Cheshin admitted plague the Supreme Court extend throughout the judicial system and state prosecution. The widespread nature of the problem was brought to the fore in three separate cases last week. First, in Nazareth, Magistrate's Court Judge Rim Nidaf ruled that Prof. Steven Plaut from Haifa University was guilty of libeling Dr. Neve Gordon from Ben Gurion University for publishing articles referring to Gordon as a pro-Hitler Jew and likening him to the Judenrat. The first instance related to the positive review Gordon published in Haaretz of Norman Finkelstein's book The Holocaust Industry. In his book Finkelstein accuses the Jewish people of exploiting the Holocaust in order to force the world to support Israel and ignore its "crimes" against the Palestinians. In his own commentary, Plaut argued that by supporting Finkelstein, Gordon was abetting a type of Holocaust denial where through comparisons of the German-led genocide of European Jewry to actions Israel has taken against the Palestinians, the Holocaust itself is effectively reduced to justified act of war. In the second instance, Plaut condemned Gordon for going to Arafat's headquarters in Ramallah with his associates in the anti-Zionist organization Ta'ayush during the height of the 2002 Operation Defensive Shield in order to protect the terror leader from IDF attack. Nidaf ordered Plaut to pay Gordon NIS 85,000 in damages and an additional NIS 15,000 in court costs. In her decision, she attacked what she referred to as "the phenomenon where anyone who dares to investigate the events of the Holocaust or its dimensions, in any fashion...immediately becomes a target of attacks and accusations as an anti-Semite or a Holocaust denier worthy of the title Judenrat or Jew for Hitler." Nidaf wrote, "This phenomenon is incomprehensible and is in my opinion unjustifiable, and opposes the principles of democracy...It is impossible and unacceptable to turn the subject of the Holocaust into a 'taboo,' a subject that cannot be studied or analyzed outside of the consensus and the 'acceptable.'" She also defended Gordon's defense of Arafat and Gordon's defense of Finkelstein's accusation that Israel has used the Holocaust to force international support for the establishment of the Jewish state "on another nation's lands." SO FOR Judge Nidaf, Gordon is within his legal rights to obstruct IDF operations in times of war and to support Finkelstein's marginalization of the crimes of the Holocaust but Plaut is guilty of libel for opining that it is wrong for Gordon to do so. The same topsy-turvy logic informed the State Prosecution in its case against right-wing activist Nadia Matar from Women in Green which opened in the Jerusalem Magistrate's Court last Wednesday. In The State of Israel vs. Nadia Matar, Matar is being tried for the crime of "insulting a public servant." The insult in question involves a letter Matar faxed last year to Yonatan Bassi the head of the Government's Disengagement Authority where she likened him to the Judenrat for his role in organizing the government's expulsion of 10,000 Israelis from their homes in Gaza and northern Samaria. While the presiding judge David Mintz ended the court session last week by suggesting that the prosecution review its decision to pursue the case, the fact of the matter is that the damage to Israel's democracy has already been done. By indicting Matar the prosecution showed that it will apply anti-democratic laws in a prejudicial fashion. Not only is the law itself draconian, the cases in which leftist activists could, yet are not indicted for similar statements, (as in the case of Gordon) occur on almost a daily basis. Just last Saturday a group of radical leftist activists including Prime Minister Ehud Olmert's daughter Dana Olmert demonstrated outside IDF Chief of General Staff Lt.-Gen. Dan Halutz's home and held signs calling him a "murderer" for the deaths of members of Raliya family in Northern Gaza. They called him a murderer even though it was Hamas, not the IDF that caused the deaths. Reasonably, no one in the State Prosecution is considering indicting Dana Olmert for those insults even though they were quoted by anti-Israel forces internationally to support their condemnation of Israel for actions it did not commit. Today the judiciary and state prosecution receive the knee-jerk support of the overwhelming majority of the Israeli media. Indeed, there are less than a handful of journalists that write or broadcasts reports critical of their anti-democratic and prejudicial actions. Most of those reporters are found outside the mainstream media and attract little attention. So while it is unclear against whose criticism the judges feel the need for politicians' protection, it is even less clear why they are not criticized more often. It is not just the Right - which the judicial system systematically discriminates against - that should be criticizing the judges. Everyone who holds liberal values and Israeli democracy dear should be on their feet shouting for our justices to be brought to order.


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