06 December 2011

The left, the right and the Supreme Court

Warning: a long post ahead!


This post is a continuation of the post Be careful what you wish for, Yoel. The wave of legislative activism that provides rich background to the subject and is partly outlined in this post, doesn't seem to be abating. On the other hand, there are some new interesting articles on the topic.

In general, Israel's founding fathers and the heterogeneous population of the time have taken the need for democratic character of the state as granted. Possibly (I am not an historian) this was the chief reason* that the mechanisms of democratic institutions are oversimplified, basic and don't provide much in the way of protecting the democracy, since it's taken for granted anyway. Lack of constitution, unicameral parliament (that allows almost unchecked rule of unrestrained majority), insufficient separation of executive and legislative branches - all this technically is a source of potential trouble - if and when. The only clearly separated branch - the judiciary - was and still is the main watchdog** of democracy, monitoring both executive and legislative branches.

As a pinnacle of our judiciary, the Supreme Court has almost always been beyond reproach, standing fast on watch over both the government behavior and the undue friskiness of the Knesset as far as wild legislative ideas are concerned. Granted, sometimes this meant that Supreme Court has undertaken tasks beyond its initially designed mandate and this so called "judicial activism" angered many politicians*** over the years.

Our short memories: the power of perception

As we all have had time to learn, public memory is a short term mechanism, readily erasing the past in favor of the scoop on next front page of newspaper or on an Internet site. The case of the supposed Supreme Court left wing bias is another demonstration of this mechanism of forgetting. As it happened to be, since the watershed victory of Likud led by Menachem Begin in the 1977 elections,  the left had been at the helm only for a few short periods. By the nature of its duty, Supreme Court deals with (many) wrong-doings of the public offices of all kinds. Needless to say, a lot of cases put before the court end up in a ruling against the powers that be. Should I expand on how the situation is perceived? Clearly you understand that Supreme Court that so frequently rules against the right wing government is perceived as a left wing conspiracy...

In this regard, I advise you all to read the article The rightists' revenge by Hagai Segal. Short and succinct, it doesn't leave a shadow of a doubt about Supreme Court being used by both sides as a football in their unending game of offense and revenge. Much as the current ruling coalition feels the Supreme Court being a bone stuck in their collective throat, same sentiments were the burden of the leftist coalitions of the past. With one difference: at the time Supreme Court was reviled as the fortress of right wing ideology.

So what else is new, ladies and gentlemen? There is a built-in mechanism that defines the Supreme Court behavior:
The Supreme Court, sitting as the High Court of Justice, has several functions, including exercising judicial review over the various branches of government, and is empowered by the Basic Law: The Judiciary to “grant relief in the interests of justice.”

The High Court is a court of first instance for petitions against the legality of decisions made by state authorities, including local authorities, and can also rule on petitions that call into question the constitutionality of laws approved by Knesset.
Live with it.

And meanwhile...

The way many members of the ruling coalition are going about entering proposals for new outlandish and embarrassing laws, it looks like they don't believe in their personal political tomorrow and are frenetically trying to leave a trace, fishy smelling as it may be, on Israeli legislative landscape. Scant thought is given to the implications, including these that may in the future struck the current lawmakers themselves like a boomerang. An over-the-top article Goodbye, Israeli democracy by Asaf Gefen, while being too hysterical for my taste, offers a few satirical ideas, like the one regarding the Supreme Court candidates 'Hearing law':
Hence, we should not settle for a mere hearing consisting of questions and answers – a format that may, heaven forbid, deteriorate into actual discussion – but rather, adopt the much more appropriate format of Reality TV auditions. Supreme Court candidates would be asked to prepare a song, dance, or cook their favor dish, which they shall present to members of the Knesset panel. The panel would then rule who goes home and who shall continue with us to the next High Court of Justice case.
I am not sure about this format, but I wholeheartedly agree with his characterization of the proposed panel of MKs that will decide on the candidatures: "most of them would not even be hired as soccer referees," he say. One thing for sure - some of them will experience the wrath of courts on their own hide sooner or later, to become another subject of a criminal trial procedure and, eventually, jailbirds, as is the way of many a politico in our country...

Ehehe... now judge by yourself: do we or don't we need an alert and proactive Supreme Court in a country where an MK tries to push through an initiative like this one:
MK Ze’ev had suggested that the Minister of Interior issue regulations which stipulate that Katzav's house is a prison in order to prevent a situation in which a former president is imprisoned.
Meaning that, if the surreal idea is accepted, a convicted rapist will receive a "get out of jail" card just because he served in an important public role? The learned MK doesn't care what it does to the law and order in the country, never mind to our basic perception of justice.

And, meanwhile, our democracy isn't doing so good. Being number 37 on the list and defined as "flawed democracy" as well isn't such a hot position, I dare say. Not to mention (again) that corruption index (see remark ***).

The unbearable lightness of legislation

A good example of a destructive romance with the legislative mechanisms is MK Danny "Israel is too democratic" Danon. His mental processes, being exceedingly simple for natural reasons, suffer from a two steps limitation, again due to same natural reasons. Step 1: there is a problem. Step 2: create a law that resolves it. The laws that Mr Danon submits are very simple too (I shall refrain from using the word "stupid"). Here are a few samples of his "activism":
  • Somebody (not Mr Danon) pushes through a bill that limits foreign donations to local NGOs. The bill is expected to meet with fierce resistance, partly from same NGOs. Danny has to solve this issue, so he says "no problems, folks" and submits a bill that will prevent the NGOs from appealing to Supreme Court.
  • Some retired high level government employees (see the case of ex-Mossad chief, Meir Dagan) are too vocal in their criticism of our government? No worries, here comes MK Danon with a new law: "The law will require a year of media silence on all security matters, to contribute to the security integrity of Israel." What the heck is "security integrity", by the way?
  • Some people (in Israel and without) demand some kind of a peace agreement with Palestinians, no matter how close to impossible the idea is? Are you disturbed by these voices? Don't fret, here comes Danny Danon: "Deputy Knesset Speaker MK Danny Danon will formally propose a law Monday that would make Israel sovereign over Judea and Samaria." Ain't our Danny cool?
  • Israel is from time to time pardoning terrorists (unfortunately). Said terrorists frequently return to their preferred line of business, terrorism. Consider this not to be a problem anymore, cause MK Danon is ready with a bill that will rescind the pardons. We have to catch the terrorists first? No worries, here is a bill that will order them to check in...
  • Some (not very nice, I agree) people in Israel support some other not very nice people who boycott (or call to boycott) Israel? Consider it solved, here comes Danny with a bill that will punish the vermin...
  • Obesity issue? You can forget it, Danny has the solution: a bill that will forbid displaying sweets at the checkout counter.
And more, and more - MK Danon is a veritable fountain**** of legislative initiatives. Mostly stupid deranged and mostly unnecessary, since in many cases we have laws in place to deal with the issues he attacks. But a lot of them causing damage - both internal and external. And this is just one member of Knesset...

(A headline Stopping 'superbugs' in their tracks just caught my attention. "Scientists and researchers must quickly develop new strategies to prevent the spread of antibiotic resistant 'superbugs.'", says the lede. Maybe Danny Danon could squeeze a new law into his busy schedule, you know, one where he forbids the superbugs by the powers of his lawmaking?)

Now do you still think that Supreme Court shouldn't be involved with this gushing fountain?

OK, and how about Bibi?

Bibi's stance on the whole business of legislative piracy is equivocal.  On one hand, he is straightjacketed by his colorful (to say the least) coalition, many members of which could easily outshine even the above mentioned Danny Danon. And frequently do so.

On the other hand (and I am saying it with a sizable grain of salt), he seems to understand the problem caused by the overly zealous (or overly mad) MKs trying to curb the powers of judiciary.
Channeling Menachem Begin’s famous words that “there are judges in Jerusalem,” Prime Minister Binyamin Netanyahu related on Tuesday to the current controversies surrounding the Supreme Court by saying “there will be independent judges in Jerusalem.”

Netanyahu, speaking to a convention of state attorneys in Eilat, pledged to “protect the independence of the courts, which is a necessary condition to our existence here. This is no less important than security or economics.”
Not to be passed over: on the way to the conference room, Bibi got stuck in an elevator for half an hour or so (article in Hebrew). So who knows - it could have been a result of a shock?

In this regard I have to mention an exceptional (for Haaretz) article by By Yehuda Ben Meir, concluded by the following statement:
I believe that Benjamin Netanyahu is, indeed, a democrat. He will be tested by his determined stand against the murky wave of those Knesset members who "want to rule."
What can I say? Unless Bibi is more concerned with the international image and says what he says for external consumption, rather than really acting on his words, we may still hope that he will recall the Knesset attack dogs. And as soon as possible too.


Our judiciary in general and Supreme Court in particular are the backbone of our democracy and the only truly independent institution guarding it (the democracy) from being deformed and corrupted by various forces busily digging under its foundations - both from the left and from the right. Attacking the court for doing its job the best way it is able to is extremely unwise. Telling the Supreme Court how to do its job requires not only the power to pass cheap legislation, granted to MKs by the democracy they are frequently abusing by such legislation. It requires some moral fiber and mental abilities coupled with understanding of the law that, unfortunately, many of our elected parliamentarians simply don't possess.

And no less important: the issue is not to be confined to the incessant left vs right brawls. We all must do anything to protect the judiciary from becoming a punching bag for our politicos. We'll sell our future down the river if it happens. Independence of the courts is indeed "a necessary condition to our existence here".

And I would go wrong without pointing to a totally different opinion: Supreme Court is danger to Israeli democracy by David Eliezrie, president of the Rabbinical Council of Orange County (California). Oh well...


(*) That and the ingrained Russian/East European habit of not worrying too much about tomorrow's problems. "יהיה בסדר" - "ihye beseder" - "everything will be fine" - is, after all, the most frequently used Israeli idiom.

(**) Sorry, it is not the so called "free press", which in our case became a bailiwick of a very few tycoons' families.

(***) And not only politicians, but some eminent law experts, like Daniel Friedmann. Prof. Friedmann looks at the whole picture as at a detached exercise performed in the ideal political structure, disregarding, I am afraid, the sordid reality of the state that once again got lower on the scale of the global corruption index:
Israel has fallen to 36th place in Transparency International's 2011 Corruption Perceptions Index, tying with St. Vincent and the Grenadines, down from 30th place in 2010 and its lowest-ever ranking since it was first included in the index. This year's index covered 183 countries. Israel's score fell from 6.1 points in 2010 to 5.8 points in 2011.
This sad fact doesn't seem to bother our executive and legislative branches too much...

(****) Here I can't avoid quoting the famous words of the Russian Kozma Prutkov: "If you have a fountain - plug it, let the fountain rest too."


Rmill2k said...

Hello Snoopy,
I disagree with much of what you say here  - with the important caveat that I don't live in Israel, so this is to some extent none of my business.

The big issue, as I understand it is the right of Supreme Court justices to pick their own successors. That is ridiculous on the face of it in a democratic society, leading to 'dynasties' based on political orientation rather than impartial judges.

The quote you used above to describe the Court's function gives a hint to the problem: "The High Court is a court of first instance for petitions against the legality of decisions made by state authorities, authorities, including local
authorities, and can also rule on petitions that call into question the
constitutionality of laws approved by Knesset".

The US Supreme Court ( on which Israel's is modeled) has the  official function of ruling on the constitutionality of US law - because we have a Constitution! Israel does not. Perhaps it should.

Further,our justices are nominated by the head of state and must be approved by the Senate. It's a good system that has worked well here, although we also have had our share of cretins and waterheads on the bench. It's based on the principle of ultimate democracy - that when the governed make a decision on whom they want to rule them, they are also making a decision about what kind of judges they want appointed, based on how those judges are going to interpret the country's laws.

You may not care for Likud or Israel Beiteinu, ( just as I don't care for the man in the White House just now) but they won the election. They have a mandate to nominate justices that lean towards their interpretation of the country's laws and policies.

On the NGO law, tell me - do you really favor allowing foreigners the EU and Left wing forces like Open Society and the Tides Foundation who are inimical to Israel being allowed to send millions to political organizations that have littel support in Israel and advocate policies opposed by most Israelis? If you do, I think you are essentially saying that democracy and the will of the people only matters when the rights of the Left are involved.

Foreign contributions should be banned to ALL NGO's or entities that engage in political activity...whether it's Peace Now or Women in Green.

Sorry about the long comment.


SnoopyTheGoon said...

Hi Rob,

Thanks for the courtesy of replying. First of all, let me correct the technicality of the "constitutionality" issue. When talking in Hebrew about that point, the full meaning will be "adherence to the basic laws". See here, for example:


The mention of "constitutionality"is a mere convenience for translation. And yes, lack of constitution is a bad thing, but manageable - UK doesn't have one too and they are considered the model democracy.

As for democratic way to pick the new judges - I have always wondered about this American habit. As I have mentioned in that post, the process whereby our, gently speaking, uncouth politicos, will pick and choose law experts, seems to be ridiculous. You wouldn't probably, insist on such procedure for choosing the next professor of chemistry or physics, so why it is OK for judges, who are, after all, scientists of a kind?

The most important thing is that judges should not interpret law based on what kind of ruling political party is at the helm at the moment. Politicization of the law is the worst that could happen. Of course, both left and right don't understand this and thus - notice this also - the ire that our Supreme Court is experiencing, no matter whether it is right or left that has the upper hand this time.

Re the NGO funding law: you may have misunderstood (or, rather, I didn't explain myself. The problem with that proposal of the learned (he he) Mr Danon is that he wants to prevent NGO for appealing to Supreme Court, which means effectively curbing the Supreme Court's mandate.

Continued in the next comment.

Rmill2k said...

Well Haboom,
I appreciate your point about Mr. Danon,,,except if the NGO proposal becomes law,why would there be grounds to appeal if judges are there simply to interpret existing law?

I respectfully disagree about democratically elected representatives voting on judges. Again, people are voicing their opinion on how the country is going, which also includes how laws are interpreted by the courts ( I think you'll concede that there is no such thing as a 100% impartial judge).

BTW, I consider America the model democracy,not the Brits!  ; )


SnoopyTheGoon said...

(Second part)

Mainly, of course, the post is about the incessant attacks on the Supreme Court and necessity to preserve its independence. Supreme Court cannot be a politicized entity, it goes against anything the founders of this country intended and against everything democracy stands for.

In is not for nothing that State Legal Advisor Menahem Mazoz stands fast against several latest law proposals, such as the NGO-related one by Danon and the 'Hearing law'... and he is hardly to be suspected in leftist sympathies.

In general, please notice that not everything that works in US is working well in Israel. (To take one example - free market. What we have instead is a market split between several local oligarch families, and so far no solution to this issue is seen forthcoming.) And of course, the lack of full-blown constitution and unicameral parliament system don't help a lot.

Believe me, my (and not mine only) concern is not coming from a political direction.


SnoopyTheGoon said...

Decision whether there are ground to appeal is not to be taken by Knesset, but by the court itself.

And judges are there (see the definition in the post) not only to interpret the law, but to decided whether the law itself is "constitutional".

While indeed judge is not 100% impartial, he/she should strive to do so. Being swayed by the current political winds is the worst that could happen to our Supreme Court. Again, see the historical dislike of Supreme Court by the left... meaning that while both sides are unhappy with the court it means that the Court is doing its job just fine.