Democracy strikes back

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

Dorit Beinisch 311 (photo credit: Reuters)
Dorit Beinisch 311
(photo credit: Reuters)
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 counterterror 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.