Wednesday, February 14, 2007
Judicial Tyranny in Israel now to be Challenged
The End Of Judicial Tyranny In Israel?
By: Steven Plaut Wednesday, February 14, 2007
It pains me to tell you this, but Ehud Olmert has actually done
something right. Possibly the very first correct thing he has done
since becoming prime minister. And it is spectacularly correct!
Olmert has appointed Professor Daniel Friedmann as the new minister
of justice. And Professor Friedmann is determined to blow the
whistle on the long reign of judicial tyranny imposed on Israel by
its anti-democratic judges and by advocates of judicial activism.
First, let�s back up a bit. Israeli democracy has for many years
been under massive assault by anti-democratic elitists promoting
judicial tyranny. Under their doctrine of judicial activism, it is
the proper role of unelected judges to trample, trump and override
the decisions of the elected representatives of the Israeli people.
Led by previous chief justice Aharon Barak and now by current Chief
Justice Dorit Beinisch, the advocates of judicial activism believe
leftist judges should dictate to Israel�s legislature what laws
those lawmakers may or may not make. Accordingly, judges should be
empowered simply to make up the law as they go along.
Bear in mind that judges in Israel cannot be removed from the bench
through any process of impeachment or ballot referendum. Advocates
of non-impeachable activist judges want them to dictate everything
in the country, from micro-decisions made by the army to Israel�s
foreign policy because �absolutely everything should be subject to
judicial review� (a favorite Barak slogan).
These people generally want the courts to impose a leftist political
agenda on Israel, and that is what judicial activism judges often
do. Barak infamously has stated that judges in Israel impose ideas
favored by �enlightened opinion,� which of course always means the
secularist Left. The vast majority of Jewish Israelis hold
�unenlightened opinions,� according to such snooty elitists.
The Israeli Supreme Court has ordered the government to record
homosexual �marriages� that were registered in other countries, and
has granted spousal rights and privileges to homosexual couples. The
court ruled that there is a constitutional right in Israel to be an
importer of non-kosher foods (remarkable, given that Israel has no
written constitution at all), but no such right to be an importer of
The court has collaborated in the many assaults against free speech
and free expression in Israel, assaults invariably directed against
the Israeli Right. The court has refused to stop the persecution of
anti-Oslo dissidents or to overturn Israel�s ridiculous
�anti-racism� law, which declares that expressing Kahanist points of
view is a felony but cheering on suicide bombers or calling for
Israel to be annihilated is protected speech.
A Supreme Court justice, Ayalla Procaccia, last year tossed female
teenage settlers into prison for their criticism of government
policy at a protest, declaring that the girls were guilty of
expressing an unacceptable political opinion. �The message must be
made clear that the law will be enforced, at times of calm or at
times of crisis, for minors or adults,� the judge declared.
Just a few weeks back, hopes for reining in judicial tyranny in
Israel seemed bleaker than ever. Professor Ruth Gavison had been a
contender for appointment to the Israeli Supreme Court. A longtime
champion of civil rights, somewhat left of center and secularist,
Gavison nevertheless is a ferocious opponent of judicial activism
and would have worked against the activist judges on the bench.
That was enough to arouse the Left against her. In a campaign
somewhat reminiscent of the malicious jihad in the U.S. against the
nomination of Yale Professor Robert Bork to the Supreme Court, the
Israeli Left mobilized its shock troops against the Gavison
appointment and it was shot down.
Meanwhile, Dorit Beinisch took over as chief justice when her mentor
Aharon Barak retired. Beinisch used the occasion of her accession to
praise Barak�s judicial activism and promised to conduct more of the
same Like Barak, she believes the court is entitled to revoke and
cancel laws passed by the Knesset, supposedly as part of �judicial
review.� Never mind that there is no constitutional basis in Israel
for such judicial review.
The distinguished Robert Bork mentioned above is on record as
declaring that Israel�s Supreme Court is the very worst in the
democratic world in terms of ignoring checks and balances and in its
promotion of judicial activism. He wrote: �Israel must have the most
activist, and from my point of view, the worst court in the Western
world. They have developed an intrusive, pervasive constitutional
law without really having a Constitution. Now that�s hard to do, but
they�ve managed it and they have managed to get themselves in a
position where they, in effect, control the membership of their own
Tel Aviv law don Daniel Friedmann is both a man of principle and a
man of conservative legal principles. Politically he is a centrist.
He was one of the people who served on the Beijski Commission in the
1980�s, set up after the bank share scandal of 1983. That commission
recommended a program of critical economic reforms that the
political hacks largely ignored.
Educated at the Hebrew University and Harvard, Friedmann strongly
opposes judicial tyranny and is dead serious about reining it in. He
wants to end the system under which the Israeli commission for
appointing judges acts as a rubber stamp for candidates supported by
the judges already on the Supreme Court. He wants to create a
constitutional court that will strip the Supreme Court of its powers
of judicial review of laws. He wants to change the system under
which the chief justice of the Supreme Court is selected.
In short, he wants to appoint judges who will actually obey the law,
an idea quite novel in Israel.
Professor Friedmann was one of those jurists who vehemently opposed
the appointment of Beinisch as chief justice, repeatedly declaring
his position that she is not competent or qualified to serve on the
Beinisch had personally led an earlier successful campaign against
the appointment of Professor Nili Cohen as a Supreme Court judge.
Friedmann was the country�s leading promoter of Cohen for the post
and accused Beinisch of blocking the appointment for petty personal
reasons. �It appears the justices are not immune to the possibility
of misusing power, as the developments in the process of appointing
judges has proven,� he wrote.
All judges in Israel are appointed by a Judicial Selection
Committee, which is currently made up of three Supreme Court
justices, two ministers (including the minister of justice), two
Knesset members, and two members of the Israel Bar Association. Once
a judge is appointed, it is all but impossible to get him or her
dismissed. Dismissals can take place when the chief justice leads
the campaign against a judge � and not always then.
In reality, the committee usually rubber stamps what the Supreme
Court justices, who dominate it, want. Hence, appointment of judges
in Israel effectively consists of unelected judges dictating which
other unelected judges will sit on the bench.
Under Friedmann�s proposals, the Judicial Selection Committee will
be revamped. Only a single sitting judge will be a member. The
others will be representatives of the public and the voters, and
they will be in a position to flex their muscles against judicial
And the Israeli Left is simply hysterical about that. Israel�s
leftist Haaretz has been overflowing with outraged articles opposing
Friedmann. One Haaretz writer compared the appointment of Friedmann
to a hypothetical appointment of convicted traitor Tali Fahima as
head of the Shin Bet intelligence service. (The comparison is
amusing since Haaretz has long served as cheerleader for Fahima and
would probably support her appointment as head of the Shin Bet if it
were to take place.)
Meanwhile, the leftist apparatchik and godmother of the Oslo
debacle, Yossi Beilin, had a public fit when he heard the news of
Friedmann�s appointment. Far-left Meretz Knesset member and Peace
Now leader Avshalom Vilan raged in the press at the fact that an
academic, not a political hack, was being appointed � someone the
Left would have difficult in bullying into political compliance.
A retired Supreme Court Justice and advocate of judicial activism,
Mishael Cheshin, openly threatened Professor Friedmann with
violence, promising to �cut off the arm of anyone who raises a hand
against the court.�
The Israeli law enforcement system has long been little more than
the occupied territory of the Israeli Left. The attorney general
does little to hide his political agenda when he makes decisions
about investigations and indictments.
Friedmann�s appointment upsets this cozy undemocratic arrangement
and threatens to strip the Left of its unelected de facto domination
by democratizing Israel�s legal system. And that�s the first piece
of really good news in Israel in quite a while.