- You would not envy the position of Israeli Prime Minister,
Ehud Olmert. He did not have a snowball's chance in hell. Every day the
newspapers and the TV channels broadcast new accusations against him and
announced fresh police investigations. Often the Israeli viewer learned
of Olmert's alleged misdeeds before the Prime Minister himself did. Police
did not just leak the details of the case they poured it out like
tropical torrent. Charges landed all over Olmert like the bomblets he
dropped on hapless Lebanon: small but plentiful.
-
- The charges were petty, at best. They are summed up You
and I have probably done similar things. Olmert was accused of charging
two different organizations for the same expenses, of accepting some contributions
in cash, of flying with his family to a trip abroad while not strictly
observing the difference between his funds and those of contributors. Probably
the Biblical injunction "Don't muzzle the ox while he is threshing"
(Deut 25:4) covers the case. But the police went after him, the Supreme
Court began deliberations on private actions against Olmert, while newspapers
and the TV blew it out of proportion. Thus two mighty powers of Israeli
politics, the media and the legal system, united in one effort to unseat
Olmert, and he caved in.
-
- This episode may demonstrate who actually runs Israel.
Though media amplifies, the judges judge. The Hidden Hand that unseated
Olmert was that of the Supreme Court and its power-hungry President, Chief
Justice Dorit Beinish. Beinish and her bosom friend Justice Arbel activated
police and prosecution, while their special storm-troops, the fighting
sorority of lesbian activists straight out of Barb Wire organised mass
demonstration and intimidated the opposition. The reasons had nothing to
do with Olmert's alleged corruption or with his real failure in the 2006
Lebanon War, but were grounded in the power struggle between the weak elected
government and the unassailable judges. Moreover, Olmert makes the third
recent, high-placed victim of the Supreme Court's drive to supreme power.
-
- The Supreme Court of Israel is self-elected and self-perpetuated,
like the Sanhedrin of old. Formally, the new judges are appointed by
the President, who confirms the decisions of a committee led by the Justice
Minister; factually the sages elect the new sages from amongst their apprentices
("interim appointees") and close colleagues. This system is called
in Hebrew 'haver mevi haver', 'a friend brings a friend'. After twenty
years of the system's strict application, the Supreme Court is a monolithic
and highly influential body.
-
- The Court is closely and personally connected with other
legal authorities, with the attorney general office, the state prosecutor
office, the police and the secret police. State prosecutors and attorney
generals dream of joining the Court after leaving their jobs. Police bosses
take the Court orders as if they were sent down from heaven. The Court
is the top of the legal pyramid, and its president can manoeuvre and manipulate
the whole system formally and informally. Under the flag of judicial activism,
the Supreme Court has assumed control of the state, leaving Parliament
and the existing government high and dry. The judges have assumed powers
any dictator would envy: they can nullify any law; they can prosecute any
MP or minister, they can block any government action or agreement. They
rule whether the state has to build shelters for border towns, whether
an army commander made a right tactical decision, whether a law can remain
on the books and whether prisoners may be swapped.
-
- Incidentally, these powers have no legal basis. The American
professor of law Richard Posner noted that the Israeli judges abrogated
these powers to themselves "without benefit of a constitutional or
legislative provision. One is reminded of Napoleon's taking the crown out
of the pope's hands and putting it on his own head."
-
- The man who took the crown of Israel and placed on his
head was not Arik Sharon. It was the previous Chief Justice Aharon Barak,
the most powerful man of Israeli politics. Posner called Barak "Enlightened
despot who created a degree of judicial power undreamed of even by the
most aggressive [American] Supreme Court justices". After he retired,
sycophantic slime spewed forth from printed and electronic media alike.
Barak had had to retire having reached the mandatory age, but he remained
very much a moving force behind the scenes.
-
- His succession by the highly ambitious Dorit Beinish
brought the conflict between the Judicial and Executive branches to the
fore. A tug-of-war ensued, with the government trying to cut the Supreme
Court down to its natural size, and with the Supreme Court fighting for
the top slot. Both sides wished to keep the struggle under the carpet,
far away from the eyes of hoi polloi.
-
- The wars of succession were concentrated around the Judges'
Nominations Committee, which is chaired by the Minister of Justice who
is appointed by the prime minister, while the actual appointment of judges
is done by the Israel's president. Surely this was sheer coincidence that
all three of these persons were politically assassinated!
-
-
-
- In 2006, Minister of Justice Haim Ramon objected to the
nomination of Dorit Beinish to the top post of chief justice. He also planned
to break with the unwritten tradition of appointing to the Supreme Court
only those interim candidates who had been invited there by the Supreme
Court to serve on a temporary basis, and instead to bring in an outsider,
a lawyer or a judge not vetted by Beinish.
-
- Ramon was treading on a live wire, and the response was
fierce. Within a month, Ramon was under investigation for sexual harassment;
in July 2006 he was forbidden to appoint judges, and in January 2007 he
was convicted.
-
- The story went as follows. A soldier girl came to visit
the Justice Minister Ramon; she looked at him with adoring eyes and asked
to be photographed with him. Eventually Ramon kissed the girl who later
claimed she had expected a kiss, but rather a fatherly and less fervent
kiss than the one she got. The girl went away, expressed her dissatisfaction
with the French kiss, and flew away to Latin America. A senior police officer
flew to Latin America, located the girl and literally forced her to file
a criminal complaint. The police woman in charge of the investigation admitted
at the hearing that she had threatened the girl with prosecution unless
she stuck to her complaint.
-
- The newspapers and TV discussed the details of the case
but practically nobody (but a few bloggers) dared to ask who had ordered
Ramon's head. It took http://www.forward.com/articles/10056/" an American
Jewish journalist to break with the vow of silence and connect this "targeted
judicial assassination" with the struggle for Court primacy. Halpern
wrote in the Forward: "Many suggest that the judges and the attorney
general had it in for Ramon because he opposed the appointment of Judge
Dorit Beinish as chief justice of the Supreme Court. His trial prevented
him from appointing someone else, while his conviction prevented him from
making changes to the judicial system later. "
-
- Meanwhile, the President of Israel, Moshe Katsav, the
man who actually appoints judges, came under fire. He was also against
Beinish's rise to Fuhrership, and paid for it dearly.
-
- A girl in his office codenamed "A" complained
of sexual harassment. It appeared in the course of investigation, that
she was lying. She had actually carried an affair with the President and
had tried to blackmail him. Her lies were so obvious that the prosecution
had to drop her, but meanwhile, the media had a field day, or rather a
field month. The media harassment sparked many complainants; apparently
every woman who ever worked with Katsav came forward to try her luck, and
a few of the accusations could possibly stick. There were daily demonstrations
by the angry feminists, the fighting sorority of Beinish and Arbel, demanding
Katsav's balls, or at least his resignation. In August 2006, he was http://www.jpost.com/servlet/Satellite?cid=1154525926315&pagenam
- e=JPost%2FJPArticle%2FShowFull" forbidden to appoint
judges, just a few days after Ramon's resignation. If that was not enough,
on September 7, 2006 the Israeli Police declared they have the evidentiary
basis for an indictment.
-
- On that day, the Judges' Election Committee approved
the succession of Dorit Beinisch to the presidency of the Supreme Court.
Katsav refrained from attending, "to prevent dispute". He also
stayed away from Beinisch's formal swearing-in ceremony, normally held
in the presidential compound, now to be held in the Knesset, so she was
sworn-in by another woman, the Knesset speaker.
-
- Katsav agreed to be charged with indecent behaviour,
then later changed his mind, but still had to resign and vacate the position
to Shimon Peres, a smooth man very much to Beinish' liking.
- Olmert understood that not only his own career, but the
very position of the legitimate government was being undermined. He harboured
these heretical thoughts for a long time. In 2002, the fighting sorority
attacked another male Oriental politician, Minister of Internal Security
Avigdor Kahalani. Edna Arbel, then state prosecutor, indicted him and brought
him to trial, but he was acquitted. Ehud Olmert, then mayor of Jerusalem,
called upon Arbel to resign and said that she lacked the professional judgment
to continue in her senior position. State Attorney General Elyakim Rubinstein
defended Arbel in his response to Olmert's comments. Since then, Rubinstein
has been rewarded with a seat in the Court, while Olmert has gained an
enemy not to be trifled with.
-
- Olmert went on the warpath by returning Ramon to his
cabinet in a senior position (though not to the post of Justice Minister)
and by hiring a new justice minister, Professor Daniel Friedmann, the very
man who was most vocal in his objection to the rule by the Supreme Court.
Friedmann made a two-pronged attack, by bringing into the Supreme Court
the first external nominee and by proposing to limit the Supreme Court
agenda by a law that would restrict the Supreme Court from ruling on political,
security and budget matters. He was immediately attacked by the retired
justices of the Supreme Court, especially by the former president of the
Supreme Court Aharon Barak and his ex-deputy Mishael Cheshin, the very
men who had established the present system, enthroned Dorit Beinish and
kept advising her. While acting judges are precluded from speaking ex-cathedra,
it is a moot point with the retired ones: they bear the title of Justice
and they draw their Judge's pension, but they certainly speak out all the
time. They went to the Knesset, to newspapers and to TV channels and described
Friedmann's actions as a "putsch".
-
- They pled with Olmert to fire Friedmann and let the things
go as usual. But Olmert wanted to return executive power to the government,
to the elected legitimate body from the self-appointed usurpers. He stuck
to his guns. Ehud Barak, the Labour leader and a minister in Olmert's government,
threatened Olmert with his resignation and the possible fall of government
unless he fired Friedmann; but the unrelenting Olmert refused to bend and
said he'd rather let Barak go than part with Friedmann.
-
- And then they attacked Olmert personally. They found
an American Jew Morris Talansky who claimed he had squeezed crumpled dollar
notes into Olmert's sweaty palm. In the course of interrogation it appeared
that the man used to boast that he gave money to every Israeli PM, including
Yitzhak Rabin, the very paragon of honesty. He had also threatened to bomb
some Rabbis who did not want to pay him. The trustworthiness of his claims
was severely undermined. But Olmert's enemies did not stop: every day they
produced a new complainant, a new accusation of corruption. If it was parried,
they made a new one. With the police and the Attorney General at their
disposal, their resources were practically unlimited.
-
- Meanwhile, the retired justices were outspoken. They
demanded Olmert's resignation, completely forgetting the "innocent
until found guilty" rule; just as they had in the related cases of
Katsav and Ramon. Dalia Dorner, a retired justice, http://www.ynetnews.com/articles/0,7340,L-3567264,00.html"
declared: "Olmert must resign. The public opinion should force him
to resign." But public opinion remained unconvinced despite the relentless
spin, and Dorner bewailed Israeli simplicity of mind: "There is no
public culture of politics in Israel, and people pay no attention to reports
about misbehaving leaders".
-
- In the end, Olmert resigned to the supreme force of the
Supreme Court. Was this a victory of Law over arbitrary and corrupt politicians?
Do not be so sure.
-
- Law or Democracy?
-
- One may like or dislike Ehud Olmert, but he was elected
by the people to do his job. We elected Olmert. One may be happy or unhappy
about this result, but one should respect the decision of the majority.
We did elect Olmert, Katsav and Ramon, and we did not elect Mrs Beinish
and her fighting sorority, though she thinks she knows what we need better
than we do. In a democracy, one should respect the people's decision. A
prime minister should rule the country, a hard enough job, instead of spending
his time answering questions by the police.
-
- Olmert has been neutralised as prime minister, because
nobody is yet able to survive a media cum judiciary assault. Apparently,
Israel may need a http://news.bbc.co.uk/2/hi/europe/3002486.stm"
Berlusconi Law protecting its executive from police investigations and
legal actions. Police investigation about whether Ehud Olmert took his
wife along at government expense can wait until he completes his tour of
duty.
-
- But the problem lies deeper; the choice is whether we
want democracy, or the rule of law. These two regimes are not identical,
- they stand in direct opposition. In a democracy, the people rule via
their elected representatives; under the rule of law, the sages (or Judges)
rule supreme. Now Israeli democracy faces a serious challenge, more serious
than Altalena crisis: unless we stop the police and the Court from meddling
in politics, democracy will be lost.
-
-
-
- A short detour is required. Of old, there were three
branches of government, or 'powers': the Legislative, the Executive and
the Judicial, as described by Montesquieu and as established by the US
constitution in the 18th century. The 20th century ushered in a fourth
power, Media.
-
- The Legislative, in our case, the Knesset, is a democratic
body, despite its limitations. The Executive is also elected - by the Knesset
and is responsible to the Knesset.
-
- But the Judicial power, i.e. the Court is not elected.
It is a self-appointed and self-perpetuating oligarchy equipped with a
vast apparatus which intervenes in matters of war and peace, labour, education,
family life and even in questions of faith. This is, let us put it charitably,
a Platonic rule by Sages. Yes there is the Law, but they interpret it as
they see fit. They may nullify a law, or reinterpret it in an entirely
different vein. Jewish history had a go at it, too, when the sages of Talmud
reinterpreted the Written Law. The Rule of Halacha was actually rule by
sages, and only the Enlightenment broke its iron grip. Now we have reverted
all the way back to the Sanhedrin, this traditional (for Jews) but not
very successful, non-democratic system of rule by Wise Elders.
-
- This was noticed by the American law professor Robert
Bork, who wrote: "[Aharon Barak's rule of law is in fact the rule
of judges, a trend to which he himself is the major contributor. Perhaps
[Barak] believes that judges are simply intellectually and morally superior
to other actors in the nation's politics".
-
- The supporters of the Supreme Court supremacy deride
the Ultra-Orthodox Jewry of Mea Shearim who accept rule by their sages,
but they themselves actually want to return us all to the rule by sages,
albeit sages of their own choosing. Karl Popper correctly stated that this
is just another form of totalitarianism. In our case - liberal totalitarianism.
-
- Some simple-minded people consider these judges to be
"of the left". A pro-family right-wing activist and blogger,
while correctly noting the anti-family tendency of the Court, called them "http://www.israelnationalnews.com/Articles/Article.aspx/7105"
The Wicked Witches of the Left.
-
- One may agree or disagree with "the wicked witches",
but they certainly have nothing to do with the Left, and this blogger should
have his eyesight checked. The Supreme Court sages, after twenty years
of inbreeding and selection, belong to an almost pure strain of totalitarian
liberals, and they indeed enforce liberalism in the worst meaning of the
word: workers' rights are frowned upon as an affront to humanity.
Majority of Israeli workers are now employed by subcontractors on contract
basis, thus eliminating benefits and social security.
-
- They approved of shifting the tax burden to the worker,
while usurers pay no tax.
- They do not protect tenants against rent rise and allow
landlords to collect rent tax-free.
- They are against children. That's why abortions and gay
marriages are welcomed; gay pride parades are approved, but life of families
with children is getting increasingly difficult.
- Even their favourite topic, gender equality, does not
lead to a more equal society but rather encourages young girls to join
the counter-insurgency fighting units.
- They authorise torture, the kidnapping of civilians,
the demolition of Palestinian homes, the confiscation of their land, and
the building of settlements.
- They accept the Secret Services version of everything,
sight unseen.
- They participate in the Assassination Committee, or the
committee for "extra-legal executions".
- They support the illegal Wall.
- They had no problem trying and imprisoning illegally
kidnapped civilians, from Mordecai Vanunu to Marwan Barghouti.
- They undermine religion because they hate anything smacking
of compassion.
-
- If that is "Left", then what is Right? But
let us be fair, they are not Right neither Left, they are the Third Kind,
totalitarian liberals. Totalitarian liberals are profoundly undemocratic,
for they are forever suspicious of the Majority. They use the Minority
Rights in order to undermine Majority Rule. They do not act in the interests
of the minorities whose name they bear in vain: rather, they use them as
a ploy for seizing supreme power. Their world-view is essentially that
of HYPERLINK "<http://www.counterpunch.org/leupp05242003.html>http://www.counterpunch.org/leupp05242003.html"
Leo Strauss, the godfather of neo-cons, "a man profoundly hostile
to the concept of rule by the people. He believed it was the natural right
of the wise and strong to lead societies to the fulfilment of their wise
aims, using subterfuge when necessary".
-
- Such a subterfuge is a presentation of the Court as the
only defence of pro-Western, 'civilised' society against the onslaught
of crazy religious nationalists, Kahanists and unruly settlers. Without
their approval, however, not a single settlement would ever have arisen,
and not a single dunam of Palestinian land would ever have been confiscated.
With one hand, they allow the Wall to encroach on the Palestinian lands,
with another, they pretend to defend Palestinian peasants.
-
- Actually, the leading judges of the Supreme Court, Beinish
and Arbel, are personally responsible for the outbreak of the First Intifada.
As state prosecutors, they came up with a nasty legal trick, the type a
rabbi might describe as "kasher aval masriach" ("it is kosher,
but it stinks"). Only a minority of Palestinian lands were parcellated
and privatised, while the majority of lands were in public use and were
called 'the lands of the Sultan'. The two "liberal leftist" lady
lawyers claimed that these lands belong now to the Jewish State as it is
now the Sultan, and thus they allowed the State to seize Palestinian common
lands and give them to the settlers. Aharon Barak authorised the snatch.
This mass confiscation was the reason for the First Intifada.
-
- They are also responsible for the second intifada, as
they permitted Ariel Sharon his march to the Temple Mount.
-
- They are responsible for the terror, as this was caused
by their glaring injustice. When they sentenced Nahum Korman to six months
of public service for the murder of a Palestinian child, they signalled
to the Palestinians that they should not expect legal remedies from this
Court.
-
- They are responsible for the Second Lebanon War, as they
blocked the release of Kuntar after Israeli withdrawal from Lebanon.
-
- More than anyone else , they are responsible for creating
the apartheid system in Israel.
-
-
- We should not allow them to shift their guilt to the
Executive or to the Legislative powers, i.e. to the government and to the
Knesset. They interfere in the affairs of the state so often and so thoroughly
that they should bear the responsibility themselves.
-
- Still, they would not be able to seize supreme power
without some important help from the Media. The Media are another non-democratic,
non-elected power. In Israel, the media belong to five wealthy families;
they appoint chief editors and journalists as they see fit, and they decide
who are their friends and enemies, and whether they should attack Olmert
or Beinish, nuke Iran or make inroads into Gaza. Being inherently non-democratic,
mass media owners tend to support other non-democratic structures, be it
the Armed Forces or the Supreme Court.
-
- These two non-elected and non-democratic powers of Media
and Judiciary entered into conspiracy against the elected parliament and
government. In every newspaper you can read that the public despises the
parliamentarians and does not trust the government. The media promote these
feelings, thereby undermining the democratic powers. The police and the
judiciary do all they can in order to confirm our suspicions. They leak
their deliberations into the media and start a witch-hunt. As a result,
the elected politicians appear as sinful, if not outright criminal, weaklings,
and the very concept of democracy, of Majority Rule is undermined.
-
-
-
- When the Judicial and Media powers allied and took control
over the Executive and Legislative, they create a paradigm shift. This
shift is universal, rather than local. Just recently, in HYPERLINK "http://www.israelshamir.net/Contributors/Contributor69.htm"
Turkey, the High court decided to outlaw the ruling party; in "http://www.iht.com/articles/ap/2008/08/04/news/Philippines-Muslim-Rebels.php"
Philippines, the High court blocked an accord that was concluded by the
government and the Muslim rebels. In the US, the courts allowed for abortions
and same-sex marriages, for dismantling trade unions and for social insecurity.
This is the great success of totalitarian liberalism. People convinced
that Supremacy of Law is a good thing should consider that this puts paid
to democracy as decisively as any dictatorial coup. This leads to rule
by anonymous 'Wise Elders', while ordinary people are excluded from decision-making.
-
- The true Left and true Right should look at this shift
with horror, for these movements have their basis in the people's will.
They seek the people's approval; they try to attract the people to their
side. Even the most far out political movements, from Fascists to Communists,
still turn to the people for their mandate. Deep down, they are democratic,
for they believe in Majority Rule. Now is the time for the Left and the
Right to unite to regain democracy, while cutting the judges power down
to their normal size.
-
- The People never had much say in Israel: the country
was run for years by one party and one army, with power smoothly shifting
from a party boss to a general and back. Still, there was at least the
occasional appearance of democracy, and a chance to extend the democratic
base. Now, the Knesset and the Government have been made irrelevant by
the Court's powers; and the Court is outside of our influence.
-
- Under the Court's rule, Israel is entering the dark realm
of faceless and nameless dictatorship. This is not the dictatorship we
were taught to be afraid of, with the dictator riding a white stallion
surrounded by outriders or speaking in a stadium to the enchanted masses.
We have no portraits of the new dictators in our homes; we are not asked
to adore them; it's the other way around, we may not utter their names
or even suspect that they exist. They do not run for public office, they
do not ask for our opinion, but they decide what will be done.
-
- They do not belong to the left or to the right. The Left
and the Right are parliamentary terms, while they are against democracy.
They undermine outstanding, personable and charismatic leaders; only petty
and corrupt politicians are allowed to survive their purges, for such would
never dare to fight these nameless dictators. With every generation, Israeli
politicians grow smaller in moral stature, until they finally disappear
in all but a name.
-
- There is an urgent need to clean up the act of the police
and the Court. They should stay away from state business and leave parliamentarians
alone. They should take care of their job instead of hunting for mischief.
This needed roll-back can't be done without some left-and-right cooperation.
-
-
- It may be conceived as the rebirth of the old fourth
power, the Ecclesiastic one, for Media preaches, and guides minds of people,
establishing normative and forbidden behaviour, just like the Church did.
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