Wednesday, July 20, 2011

The Threat to Israeli Liberties from the Israeli Supreme Court

The Threat to Israeli Liberties from the Israeli Supreme Court

By Steven Plaut
Robert Bork, the eminent American law professor from Yale University,
once described the Israeli Supreme Court as the worst in the Western
world. Israel, Bork wrote, "has set a standard for judicial
imperialism that can probably never be surpassed, and, one devoutly
hopes, will never be equaled elsewhere." Bork finds "less and less
reason for the Israeli people to bother electing a legislature and
executive; the attorney general, with the backing of the Supreme
Court, can decide almost everything for them." To make things worse,
judges in Israel, including Supreme Court judges, are chosen by a
non-elected panel dominated by other judges, and there are no
possibilities for impeachment of judges by the parliament or by ballot
initiative. Appointments of judges are not subject to approval by the
Israeli parliament (the Knesset).

Israel's Supreme Court has been dominated by the anti-democratic
doctrine of "judicial activism" for a generation. "Judicial activism"
is when judges simply make up imaginary "laws" as they go along,
without the need for the legislature to bother passing them as laws.
This week the Israeli Supreme Court in Israel is denouncing benefits
for Israeli army veterans. What law allows them to do so? None at

In many cases the rulings of the Israeli Supreme Court are attempts to
implement the leftist ideologies of judges. Ex-chief Justice Aharon
Barak used to brag about his issuing rulings based upon "enlightened
opinion" in Israel, meaning leftist opinion. The current chief
justice is also a great believer in "judicial activism." The
unelected justices of the Supreme Court claim the right, invented by
them out of thin air, to be able to overturn laws passed by the
elected representatives of the people. There is no constitutional
basis in Israel for their claiming such a right.

The Israeli Supreme Court has also frequently long displayed
indifference when it comes to civil liberties. It is militantly
aggressive in defending the "liberties" of Israeli Arabs and far
leftists, but seems to have little interest in defending civil
liberties, including freedom of speech, for others. In one extreme
example, a Supreme Court justice, Ayala Procaccia, ordered the
imprisonment without trial of 14-year-old religious girls who had
dared to participate in a demonstration of the right. No one believes
the girls would have been imprisoned had they participated in a
demonstration of the left. Writing in Azure, Robert Bork says,
"Israel's High Court, however, has decided that state inaction amounts
to state action, so that the individual's freedom may be declared
unconstitutional and the state required to act. Individual freedom
thus exists at the sufferance of judges. ... All of this is
exacerbated, as Polisar observes, by a method of selecting judges that
allows the High Court to choose its own membership."

Israel's Supreme Court recently refused to review the decision of the
Nazareth Appeals court in the famous long-running Plaut-Gordon
lawsuit, in effect leaving the earlier anti-democratic decision by the
Nazareth court in place. That lawsuit was a SLAPP harassment suit
filed by the Israeli leftist anti-Semite Neve Gordon against me to try
to stop my criticizing his political opinions and activities. "SLAPP"
stands for "Strategic Lawsuit against Public Participation," and SLAPP
suits are anti-democratic harassment tactics used to suppress freedom
of speech.

The Israeli Supreme Court has now refused to defend freedom of speech
and refused to squash SLAPP suit harassment in Israel. It took the
Supreme Court nearly two years to decide not to review an earlier
appeals court decision in the Gordon-Plaut case. Its refusal in
essence establishes formal infringements on freedom of expression in
Israel. The Supreme Court opinion was written by the Deputy Chief
Justice, Eliezer Rivlin. He was joined in his refusal to defend
freedom of speech by justices Neil Handel, supposedly the voice of
religious conservatives on the court, and Salim Jubran, the Arab judge
in the Supreme Court. A few days ago Rivlin was one of the judges who
voted for a different Court ruling that telling the truth is no
defense against the Soviet-style charge of "insulting a public
official" in Israel.

This was one more nail in the coffin for Israeli freedom of speech.
The Gordon SLAPP suit filed against me, which began a decade ago,
should have been summarily dismissed in the very first round of
litigation. Gordon sued me because I accused him of being a "groupie"
of anti-Semite Norman Finkelstein, after Gordon compared Finkelstein
ethically to the Prophets of the Bible, and after I denounced Gordon
for his serving as a human shield for wanted terrorist murderers and
his illegal interference with Israeli anti-terror operations. The
facts of his doing so were never denied by Gordon.

That suit would have been if Israel were really a democratic country
with a functioning judiciary. Instead, it was assigned to a radical
Nazareth court Arab woman judge, whose husband was the right-hand
party man of Azmi Bishara, the Israeli-Arab traitor and spy now in
hiding. Nazareth court has many Arab judges, some of them radical
politically. Neither Gordon nor I live in the Nazareth district, and
the suit was filed in Nazareth as an act of naked forum-shopping,
because Gordon wanted to get a radical Arab judge. In her verdict
this judge endorsed Holocaust revisionism and declared all of Israel a
state constructed on lands stolen from another people. Not
surprisingly she found for Gordon and awarded him 95,000 NIS in
"damages," even the law does not let her award more than 50,000 NIS in
such cases. In essence her verdict amounted to the ruling that
treason in Israel is protected speech but criticism of treason is
libel. She is still sitting on the bench.

This is the same Neve Gordon who routinely calls for Israel to be
destroyed, who insists that Israel is a fascist, Nazi-like apartheid
regime, and whose own university president regards him as a traitor.
Gordon is very likely to be among the very first people to be sued
under Israel's new "anti-boycott" law, which allows the filing of
damage suits against those who have worked for world boycotts against

That Nazareth lower court ruling in the case was later reversed on
appeal in the Nazareth Appeals Court, but only 90% of it was reversed,
allowing (by a vote of two judges against one) Gordon to retain 10% of
the "damages" the Arab woman judge had granted him (or 10,000
shekels). Those 10% were based entirely on my use of the term
"Judenrat-wannabe" in an internet article referring to Gordon's
illegal pro-terrorism activities.

The Nazareth Appeals Court ruling was based on an older Supreme Court
case, Dankner vs. Ben Gvir, in which Amnon Dankner, a national
journalist, called the Kahanist Ben Gvir a "little Nazi" on national
television. Ben Gvir sued, and when it reached the Supreme Court the
ruling was that "Holocaust era rhetoric" is prohibited in political
discourse in Israel. The Supreme Court found for Ben Gvir and awarded
him one shekel.

The same Supreme Court has now allowed Neve Gordon to retain 10,000
shekels in "damages" because I referred to his group of human shields
for terrorists as "Judenrat wannabes." The Court believes this is
10,000 times worse than calling someone a "little Nazi." Ironically,
the same Deputy Chief Justice Rivlin, who wrote the Supreme Court
ruling in Gordon-Plaut, voted against the ruling in Dankner-Ben Gvir,
and was the minority voice who claimed even that was protected speech.
To put this differently, denouncing on the internet the illegal
treasonous activities of a person is now 10,000 times worse than
calling someone a little Nazi on national television, in Rivlin's new
opinion. Guess what the Court's "price tag" would be if a leftist
called a non-leftist a Nazi or a storm trooper. I leave you to ponder
how much the use of Holocaust-era rhetoric would be valued by the
court if it were a leftist denouncing Israel as a Nazi regime.

After the Nazareth Appeals Court ruling, I filed a Supreme Court
appeal. After dragging its feet, the Supreme Court panel of three,
led by the same Rivlin, decided there was insufficient constitutional
or public interest in reviewing the Nazareth appeals ruling, in effect
allowing it to stand. And, in effect, also preserving the suppression
of freedom of speech contained in that verdict.

The Israeli Supreme Court has once again refused to defend the freedom
of speech that is supposed to exist in Israel. In their ruling, the
judges appeared not even to have read my appeal, and so failed to note
that the description of Gordon as a "Judenrat-wannabe" that was deemed
"libelous" was in fact a reference to Gordon's serving as a human
shield for wanted murderers and to his illegal treasonous interference
with Israeli military operations against terrorists. For all intents
and purposes, the Israeli Supreme Court reestablished Israel's status
as a mere semi-democracy, one in which freedom of speech does not
really exist, at least not for critics of far leftists.

The earlier Nazareth appeals court ruled that Gordon was entitled to
"damages" because I had denounced his public political writings and
behavior. Gordon is clearly a "public figure" by any reading of the
law, and so his political behavior is hardly subject to immunity from
criticism. Because of the presence of the term "Judenrat-wannabe" in
my sentence, the lower appeals court ruled that this is not protected
speech. Of course the hundreds of daily denunciations by Israeli
leftists or Israeli Arabs against Israel or against Israeli
non-leftists as "Nazi" or "fascist" are all protected speech. The
Supreme Court judges have now agreed with the lower court. The
Supreme Court's ruling establishes the principle that everyone in
Israel may use "Holocaust era imagery" in discourse except for critics
of the left.

The Supreme Court even ignored an earlier ruling by the Supreme Court
itself (Freij vs. Kol Hazman) that came out after the Nazareth Appeals
ruling in Gordon-Plaut, which stated that use of Holocaust-era imagery
in discourse actually is permitted in Israel, especially in political

The Supreme Court has failed to act against anti-democratic SLAPP suit
harassment designed to suppress freedom of speech in Israel.

The Supreme Court has failed to do anything against forum shopping by
extremists and radicals seeking to use the Nazareth Court, with its
large number of Arab and radical judges. It is hardly a coincidence
that nearly every suit against the state of Israel filed by West Bank
"Palestinians" is filed in Nazareth court.

The Supreme Court failed to act against the misuse of the courts by
radical anti-Israel leftists as bludgeons again the freedom of
expression for critics of those leftists.

In short, the Supreme Court decided to prove once again that in Israel
there operates a dual justice system, one for radical leftists and one
for everyone else.

The Gordon-Plaut case has become known in the media as the Israeli
David Irving case, similar in some ways to the libel SLAPP suit filed
by Holocaust Denier David Irving against Deborah Lipstadt in British
court. The difference is that in Israel the Supreme Court refuses to
defend the freedom of speech of the Israeli Deborah Lipstadt, nor to
penalize the Israeli analogue to David Irving. Had Deborah Lipstadt
been sued by David Irving in an Israeli court, especially in Nazareth
court, Irving may have won.

The opposition to democracy and freedom of speech in the Israeli law
community transcends court justices. In recent weeks we have seen
repeated rounds of petitioning in favor of leftist causes signed by
numerous professors and other faculty members in the Israeli law
schools. These include a petition against singing Hatikva, signed by
scores of law professors. Law professors have also signed petitions
in favor of allowing the Hamas Sheikh Salah to speak on campus, as
well as petitions opposed to allowing a woman army colonel to teach on
campus. They have signed numerous other petitions in favor of leftist
pet causes in large numbers, including calls for boycotting Ariel
University and opposition to all Knesset initiatives against radical
leftist subversive NGOs.

At the same time it is all but impossible to find examples of law
professors speaking out in favor of freedom of speech for
non-leftists, or in denunciation of infringements of freedom of speech
for non-leftists. I am not aware of a single law professor who spoke
out against the harassments and arrests of rabbis in recent weeks,
when those rabbis dared to exercise freedom of speech. I am not aware
of a single law professor who denounced the suppression of freedom of
speech for Kahanists. I am not aware of a single law professor who
denounced the wave of leftist McCarthyism after the Rabin
assassination, in which freedom of speech for non-leftists was
massively suppressed and non-leftists who exercised that freedom were
denounced by the government as "inciters." I am not aware of a single
law professor who has spoken out against the anti-democratic
harassment by the deputy Attorney General of settlers and rightists.
I am not aware of a single law professor who denounced the firing of
Prof. Yeruham Leavitt for daring to express his "politically
incorrect" opinions at Ben Gurion University, this in spite of open
public appeals to those same law professors to take a stand, or the
firing of a high school teach who criticized the indoctrination into
"Rabin's doctrine" in schools. I am not aware of a single law
professor who has spoken out against SLAPP suit harassment in Israel.
I am not aware of a single law professor who has condemned Neve Gordon
and the Nazareth court for their behavior in the Plaut-Gordon lawsuit,
this despite appeals to these same professors to speak out, while I
know of a handful who have actually endorsed Gordon and the Nazareth

In short, Israeli law schools have become home to masses of law
professors and other academics who are either fundamentally
anti-democratic, or are too intimidated and cowardly to take a public
stand in favor of freedom of speech. They take their lead from
Israel's anti-democratic judges. Meanwhile, Israeli judges and
leftists now are campaigning against a Knesset proposal to require
parliamentary approval of appointments of judges. They consider that
idea preposterous and monstrous. I mean, what does the Knesset think
this is here, the United States?

The Israeli Supreme Court is today a clear and present threat to the
liberties of Israelis. It is increasingly anti-democratic and
unwilling to defend freedom of speech. The Israeli parliament must
reform the Supreme Court. It should consider a moratorium in which
the Supreme Court is shut down altogether until that is accomplished.

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