Rattling the cage: Keep Beinish's court supreme

Israel needs a strong, independent, liberal court more than other Western democracies.

larry derfner 88 (photo credit: )
larry derfner 88
(photo credit: )
I know Justice Minister Daniel Friedmann doesn't intend to cripple Israel's democracy and turn it into a Third World country, which is what former Supreme Court President Aharon Barak just warned is going to happen. But I'm convinced Barak is right - that's where Friedmann's "reforms" are leading. Friedmann is not the only liberal who thinks the Supreme Court, especially under Barak, overstepped its bounds and usurped powers that rightly belong to the government and Knesset. Liberal jurists Ruth Gavison and Amnon Rubinstein have made the same sort of criticism. So has Barak's predecessor, Meir Shamgar. Friedmann is trying to change the balance of power between the Supreme Court and the politicians to give the politicians more power and the court less, which, in principle, is not necessarily a bad thing. If the court tended to be packed with stupid, rotten judges and the Knesset and government tended to be top-heavy with enlightened tzaddikim, I'd go along with him. Even putting aside the quality of the judges and politicians, I imagine Friedmann, as well as Gavison, Rubinstein and Shamgar, would just like to rejigger the balance of power somewhat, so that the Supreme Court didn't have quite so much authority over Israeli national life as it has now, but so it still remained very authoritative, very strong. The problem, though, the danger that makes Barak right in his apocalyptic warnings, is that Friedmann, no doubt without meaning to, has become the stalking horse for a huge, well-represented, powerful force in the Israeli public that doesn't want to merely curtail the Supreme Court's power. They want to neutralize it, which really would be the end of Israel's democracy. I'm talking about the entire haredi public, the entire right-wing Orthodox public, and much of the secular right wing. Together, they're roughly half of Israel's population, and they have the haredi parties, the right-wing Orthodox parties and parts of Likud and Kadima fighting the war against the Supreme Court for them. (To his credit, right-wing opposition leader Binyamin Netanyahu has always defended the court's independence, although not as loudly as he should have, certainly not lately. To his shame, Prime Minister Ehud Olmert is Friedmann's enabler.) The members of this giant camp aren't critics of the Supreme Court, they're enemies. They hate the idea that a handful of unelected "elitists" can stop the "nation" from doing whatever it wants with its political and military power. They hate the sound of the words "human rights," "civil rights," "minority rights," "international law," "equality before the law," all the things the Supreme Court is supposed to respect and defend against the "tyranny of the majority," a concept that makes no sense to these people. How can a Jewish majority be tyrannical? They recoil at the sound of the words "Supreme Court" like they do at the sound of the words "the media," or "Amnesty International," or "Europe." This is certainly not Friedmann's mentality, nor Gavison's or Rubinstein's or Shamgar's, but it definitely is the mentality in Shas, United Torah Judaism, Yisrael Beitenu, National Religious Party, National Union, much of Likud and probably a small part of Kadima. IT EATS these people alive that the Supreme Court can outlaw torture over the objections of the Shin Bet, or stop the IDF from confiscating Palestinian land and giving it to the settlers, or force the Keren Kayemet to sell Israeli land to Arab citizens as well as Jews, or allow Palestinians to sue Israel if IDF soldiers kill them or injure them or damage their property without provocation or military purpose, which has been known to happen. The idea that Israel's Supreme Court can side with the Arab minority, and even with the Palestinians, for God's sake, against the will of the Jewish majority, its government or its army, and all in the name of "civil rights" or "minority rights" or "international law" - this strikes about half of the Israeli public as being akin to treason. Similarly, the court's rulings in favor of religious equality for Reform and Conservative Jews strike the haredim as being akin to satanism. It's not an accident that Barak, when he was court president, received numerous death threats and required round-the-clock bodyguards. If it was strictly up to the political powers-that-be, the Reform and Conservative in this country wouldn't be second-class Jews but third-class Jews, and Israeli Arabs wouldn't be second-class citizens but seventh-class citizens. The occupation of the West Bank would be far more brutal than it's been. Israel would be a more Jewish state, in the sense that the Jewish majority and the Orthodox religious establishment would have an even stronger monopoly on power than they have now. But Israel would hardly be able to call itself a democracy. It really would be like a Third World country - where the minorities, the outsiders, the weak can be abused at will by the powers-that-be because there is no law to protect them. In countries with free elections, it is the courts, not the public and the politicians, that usually are the guarantors of minority rights, human rights, civil rights. Such cases, almost by definition, pit the court against the will of the majority. This is why Friedmann's bid to transfer power from the Supreme Court to the politicians can only make Israel a less just society than it is, the danger being that at some point down the road Israel would stop being a democracy, where political power is limited by the law, and become a popular dictatorship, where political power is limited by nothing. The counter-argument to this put forward by Friedmann and his supporters is that in the US and many other Western democracies, the balance of power tilts to the politicians much more so than in Israel. "England, France, Germany and the United States aren't democracies?" Friedmann demands. But whether or not such countries have model legal systems, Israel needs a strong, independent, liberal court more than they do - because Israel's political system has inherent inequalities that Western democracies don't. A Jewish state with certain laws and policies that explicitly favor Jews, a state that deliberately maintains a huge Jewish majority, automatically makes its Jewish citizens "more equal" than its Arab citizens. And Israel's being in continual conflict with the Arabs beyond its borders naturally hurts the chances of equality for the Arabs who live here. As for the non-Orthodox minority of Jews, they would be equal to the Orthodox if there were separation of religion and state in Israel like there is in Western democracies, but there isn't. The political power of the Orthodox sees to that. These inequalities, especially between Jews and Arabs, reflect the will of the Israeli majority and the politicians they elect. And these inequalities can get worse, much worse, if the Supreme Court's ability to mitigate them is weakened by the will of the people. The Jewish majority will keep Israel a Jewish state. But the only thing that can keep Israel a democratic state as well is the Supreme Court. So Friedmann and his camp have got to be defeated. And Aharon Barak, his successor Dorit Beinish and their camp have got to win.