Building A Jewish Democracy

Israel Liberty Monitor

Volume III Issue 5 1 Elul 5768 / September 1, 2008

Israel Policy Center, Efrata Teachers’ Training College Launch Joint Program in Civics Education

The Israel Policy Center and Efrata College in Jerusalem are collaborating in designing and operating a program to train civics teachers for Israel’s high schools.  The one-year, 24 credit program intended for teachers holding or studying for academic degrees will qualify them to teach civics in any Israeli high school, though Efrata specializes in training teachers for “national-religious” schools.  Efrata intends to develop a full, four-year degree in political science and civics education and IPC will help shape the content of the program.

The new program is unique in emphasizing Jewish identity and values as the basis for committed, democratic citizenship in Israel.  Another central feature of the program is the emphasis placed on Anglo-Saxon theories of democracy, which regard the obligation of the state to respect individual rights as the basis of the social contract.  These themes are notable for their absence in current Israeli civics curricula.

In the future IPC plans to develop programs of civics education which similarly emphasize Jewish identity and values and the sanctity of rights as the basis of a living, sustainable social contract for mainstream Israeli teachers’ training colleges.  IPC also plans to design a new civics curriculum for Israeli high schools.

IPC has identified civics education as a critical area in reinforcing Israel’s Jewish character and strengthening civic commitment in Israel.  Public morale and a sense of commitment to the public good have undergone a disastrous decline in Israel, reflected by a decline in public confidence in public institutions across the board and a growing disinclination by young people to serve their country in the military.  In a sense, the public’s lack of confidence in the institutions of the state is not surprising.  Jewish nationalism and the historicity of Jewish peoplehood are increasingly drawn into question in Israeli public discourse.  Personal ethics have likewise eroded, especially the behavior of individuals in their character as public figures.

IPC believes that an important response to the decline of public morale is encouraging Israelis to view their Jewish identity as the basis of their Israeli citizenship and Jewish ethics, particularly the Jewish conception of the ethical obligations of individuals to each other and to society at large, as the foundation of a functioning society.  This approach implies viewing the State of Israel as the public expression of a Jewish political community.

One object of the IPC-Efrata program is to attract students in Hesder rabbinical seminaries (yeshivot) to the program.  Hesder yeshivot are the flagship institutions of national-religious education in Israel.  Hesder students study for 20 months, serve in the IDF for 16 months, and then return to the yeshiva for a lengthy period.  Many of the most intelligent and intellectually ambitious attain both rabbinical ordination and teaching degrees, and go on to teach in high schools, where they naturally become the intellectual and spiritual leaders of many young students.

 Since the disengagement of 2005 IPC has noted a worrisome phenomenon of “counter-disengagement;” disillusionment by the rising intellectual elite of the national religious community with Israeli society and democracy, which seems to them hypocritical and hollow.  At the same time there is a rising thirst to understand Israeli, and postmodern, society, politics and philosophy.  The IPC-Efrata program is meant to provide these ambitious young scholars with the knowledge they seek and a forum for “critical engagement” with Israeli public life rather than disengagement and distance.

 
 

IDF Provides IPC with Information on "Dangerous" Draftees

 In response to the Israel Policy Center’s (IPC’s) demand, filed under Israel’s Freedom of Information Act, the IDF provided IPC with data on the number of draftees examined for representing, in the IDF’s opinion, a danger to the public.  IPC suspects that “dangerousness” screening is being used a pretext to disqualify draftees on the basis of their political orientation or religious background.

 In a television program last February devoted to the phenomenon of young religious draftees whom the IDF falsely classifies as psychiatrically incompetent, Col. Tziki Sela of the IDF’s Manpower Division revealed that the IDF operates a “dangerousness procedure” through which it selects certain draftees for examination on suspicion that they will use the Army weapons for illicit purposes.  IPC immediately requested the IDF to provide data on the number of people examined and how their cases were disposed of, as well as the text of the “dangerousness procedure.”

 After several months—the maximum period allowed by law—the IDF provided IPC with the statistics requested at the start of the month.  According to the IDF’s figures, 2600 draftees were examined under the “dangerousness” procedure during the period 1999-2007.  During this period only 9 draftees were disqualified as representing a danger to the public.  However, close to half of the 2600 examined were disqualified from service for a variety of other reasons, a far higher proportion than the general population.

 Surprisingly, medical (including psychiatric) reasons or a criminal record, taken together, represented only a minority of those disqualified.  Most of the disqualified were excluded from service for amorphous and ill-defined reasons of “social maladjustment.”  Almost a quarter of those examined came under scrutiny in 2006 alone, the year after disengagement.  2007 shows a significant fall both in the number scrutinized and the number disqualified.  IPC published the results of its study on political interrogations in the IDF in early 2007.  The data suggest that the “dangerousness procedure,” and particularly the decision to disqualify a draftee from service, is in urgent need of review.

 The key to determining whether the IDF applies the “dangerousness procedure” objectively and without political bias is to examine the criteria which lead to a draftee’s inclusion in the population deemed potentially “dangerous.” However, the IDF refused to provide IPC with the text of the “dangerousness procedure.”  An IDF attorney intimated in a conversation with Dr Klein of IPC that this is because the “procedure” was, in fact, drawn up by the GSS, Israel’s Secret Service.  IPC is considering whether to challenge this refusal in court.

 IPC is analyzing the data provided by the IDF and will publish a full report on its implications.
 

Is Israel's Attorney General Like the Biblical Prophet Samuel? by Uri Shtruzman

The authority to crown kings emerges on the Jewish people’s national agenda during the period of the Judges, when “there was no king in Israel and each man did as he saw fit.” When the people realized that the method of appointing “judges,” as local rulers were then termed, failed to provide leaders of integrity and they decided to change the system of government that had ruled them for 400 years, they faced a constitutional vacuum. The constitution of Moses did not specify how the system of government could be changed. 

 The elders and the leaders of the tribes convened to consider the matter. The consensus was that monarchy was the desired form of government, but there was no consensus on a candidate for the crown. Lacking any other alternative, the assembly decided to empower a consensual figure, divinely inspired and of unimpeachable integrity, to choose a king: the prophet Samuel. The assembly requested of Samuel, “Choose us a king to judge us” (I Samuel, Ch. VIII). Upon receiving his commission from the elders, Samuel consulted the L-rd and anointed Saul to be King of Israel.

 The question of the authority to select a Prime Minister is of relevance today. The people desire a change of leaders, and the Prime Minister, consenting, has given notice of his intention to resign as soon as his successor is chosen in primary elections within his party. So far so good, as far as existing constitutional arrangements are concerned. The public interest in the Prime Minister’s early departure and his replacement with someone else, even temporarily, however, has spurred some to comb the statute book for some way to shove the current incumbent out of the Prime Minister’s office with more than deliberate speed. Interested parties quickly discovered Article 16(b) of Israel’s Basic Law: The Government, which reads: “Should the Prime Minister be temporarily unable to discharge his duties, his place will be filled by the Deputy Prime Minister.”[1] Alas, the law does not state who is to decide that the Prime Minister is no longer competent to discharge his duties and must be replaced. When former Prime Minister Sharon suffered a stroke and was manifestly incapable of functioning, no special decision was necessary to determine that his Deputy could step into his place. In this case the law placed no a priori burden on the Attorney General to find that the Prime Minister was nonfunctional and should be replaced.

 What if there should be a Prime Minister who comes to the office every day and is convinced that he can carry out his duties, but others around him think that he suffers from a psychiatric disorder or has lost his powers of quick and coherent decisionmaking? The law does not provide who is to declare him incompetent, or even who has the power to force him to undergo medical tests. The Attorney General has no legal authority to do so. If the Elders of the People—in our day, the Knesset—cannot agree on the necessity of deposing the Prime Minister, nobody has the authority simply to take his place. In this matter Israel faces a constitutional vacuum, as in the days of the Judges.

 Characteristically, Israel’s Supreme Court has rushed into this vacuum. Recently, in a case that has nothing to do with finding the Prime Minister incompetent to carry on, almost as an aside, the Court endowed the Attorney General with the authority which escaped the Elders of the People 3000 years ago, that of appointing and removing Prime Ministers.

 Yoav Yitzhak, a journalist, appealed to the High Court of Justice (the Supreme Court) against the Prime Minister (HCJ 6231/08), seeking to have the court direct the Attorney General to declare the Prime Minister incompetent to serve, so as to remove him from office and force him to give his full time and attention to the police investigators interrogating him about his many alleged improprieties. Yitzhak’s suit assumes the Attorney General possesses the power in question. The court, instead of pointing out that the Attorney General possesses no such authority and instructing the police to treat the Prime Minister like any other suspect who effectively chooses to remain silent, tried to make good the constitutional vacuum regarding the power to determine that a Prime Minister must step down.

 In what appears to be a superfluous comment immaterial to the case at hand, the Court speculated: We are prepared to assume that the Attorney General is correct in his claim that the directive [Art. 16(b) of the Basic Law: The Government—U.S.] regarding the Prime Minister’s temporary incapacity is not limited to questions of health, but that incapacity can arise for many reasons, including criminal investigations. We also assume, without making a determination in the matter, that the Attorney General is empowered in appropriate cases to declare the Prime Minister temporarily incapacitated, as happened when Prime Minister Sharon’s health suddenly deteriorated . . . Even so, clearly such a declaration on the grounds of criminal investigations of the Prime Minister are extremely exceptional . . . if it becomes clear that the conduct of the Prime Minister does not permit the appropriate pursuit of investigations against him, it may be appropriate for the Attorney General to declare him temporarily removed from office.

 Thus, indirectly, in an aside, as it were, a Talmudic discussion, by imparting legal significance to the declaration of the Attorney General in the Sharon case rather than interpreting it appropriately as simply recognizing objective circumstances which permitted Sharon’s deputy to take his place, the Court placed a whip in the Attorney General’s hand: The ability to threaten, and if necessary to punish, an elected Prime Minister with removal if he fails to devote the time the Attorney General considers appropriate for a criminal investigation.[2]

 I have no idea whence the Court derived this authority it vests in the Attorney General. What is the Attorney General to do before declaring the Prime Minister temporarily removed from office? Will he summon the Prime Minister to a hearing and examine his appointment book? Will he interrogate the police to learn if the hours it requires for the Prime Minister’s interrogation are really necessary? If the Attorney General suspects that some future Prime Minister is physically unfit, will he force the Prime Minister to undergo a physical examination in violation of the Rights of the Ill Act and send him under police escort to the doctor?

 The judgment of the court, given as an aside in a suit meant to admonish the Prime Minister to cooperate with the police, creates a power in the Attorney General that has no basis in the law. The judgment is a serious error, antidemocratic in nature. Tomorrow an Attorney General might declare a Prime Minister temporarily unfit for office because the latter adopts a policy of returning the Golan to Syria. Why not?  The Supreme Court has vested the Attorney General with the necessary authority, and in his judgment perhaps the desire to return the Golan is prima facie evidence of an unbalanced mind. No need to consult any due process of law in determining the Prime Minister’s incapacity. The power to crown and depose kings has been vested in the Attorney General by the Supreme Court.

 Samuel in his generation received from the assembled elders of Israel the authority to appoint a King. In our day the Supreme Court has appropriated this power to itself. Samuel took counsel with the Master of the Universe. Whom will the Attorney General consult if and when the time comes?

--------------------------------------------------------------------------------

* Judge Uri Shtruzman (ret.), formerly of Tel Aviv District Court, is a senior research fellow at the Center for Zionist Strategies. The Hebrew version of this article appeared on the Israeli website “Mar’ah” (Mirror), www.maraah-magazine.co.il. Translated and distributed by permission.

[1] “Deputy” is a more accurate translation of the original Hebrew text than “Acting.” The Prime Minister generally appoints a deputy from among the cabinet, who becomes Acting Prime Minister if the Prime Minister cannot function or is temporarily away from the country.

[2] The reader should note that the Attorney General possesses the sole power by law to indict or to direct an investigation of the Prime Minister. This court opinion gives him the power to remove the Prime Minister in consequence of an investigation, even one that has reached no conclusion and may result in no indictment

 

 

Supreme Court Reverses Finding that Palestinian Authority is Sovereign

Jerusalem, Aug. 8 - Israel’s Supreme Court reversed a verdict of Tel Aviv District Court from 2006 which found that the Palestinian Authority was a sovereign entity whose actions are not justiciable in Israeli courts. The District Court ruling constituted a remarkable precedent, in which a court presumed decide a delicate issue of international relations without reference to the position of the Government of Israel.

At issue was a land purchase by an Israeli organization in the Samaria region on the basis of testimony by the Mukhtar of an Arab village regarding the ownership of the real estate in question. The Mukhtar, who received the payment for the land, turned out to have lied regarding ownership of the land. The Israeli organization sued to get its money back, received a judgment in its favor and attempted to seize the estate of the Mukhtar (now deceased). The District Court ruled that Israeli court judgments were not enforceable in territory under the control of the Palestinian Authority because the Authority is sovereign.

The Supreme Court overturned the verdict, basing itself on a previous ruling that the question of the Palestinian Authority’s “sovereignty” was to be decided on a case-by-case basis by Israel’s Foreign Minister. 

The Palestinian Authority was established in the Oslo Accords, by which the Palestinians were granted a degree of self-rule under Israel’s ultimate authority.

The judges in the case were Supreme Court Justices Edna Arbel, Reuven Rivlin, and Salim Joubran, the court’s sole Arab. It may be noted that Arbel is a close friend of Chief Justice Dorrit Beinish. Beinish forced Boaz Okon out of the legal system, causing him to resign, when she made clear that she would not consent to his serving as director-general of the legal system and strongly intimated that she would not promote him to the Supreme Court. Okon was a protégé of former Chief Justice Aharon Barak.

 

 

 

Israeli Government Approves Establishment of Biometric Database

(August 2) — Israel’s government approved the establishment of an official biometric database which would record physical data, such as fingerprints, taken from all citizens. A bill to establish the database now goes to the Knesset.

 The bill would issue each citizen with an ID card that embeds his or her biometric data, which could include fingerprints, retina scans, and other physical characteristics. Such ID would be extremely difficult to forge, and permit easier identification of citizens involved in a disaster

 The bill however also provides for the establishment of a database of biometric data. This would in principle allow the government to follow certain movements and activities of citizens without their consent. Today, a citizen’s consent is necessary in order for the government to record his or her fingerprints.

 In theory, data from the database would only be available to proper authorities, such as law enforcement officers or medical personnel, on the basis of a warrant or other legal authorization. The ambiguous phrase, “other legal authorization,” reveals however the problematic nature of such a database. Once the database is established, it makes possible for the government to use the data therein for purposes today considered a violation of privacy. There is further the danger that officials will abuse their authority to gain access to the database for illegal purposes. Israel’s police have a history of abusing their access to private information, such as wiretaps.

 The proposed law represents a further erosion of the right to privacy in Israel, following on a law, adopted last year, which provides for the recording of all phone and cellphone conversations.

 
 

Israel Police Prevent Use of Jewish-Owned Property in Jerusalem

On three occasions during the months of July and August representatives of Mountain Dwellers Ltd, a Jerusalem property company, attempted to perform construction and agricultural work in 180 hectares (45 acres) of private property under its management in the Eastern Gate (“Shaar Mizrach”) area of Jerusalem.  Eastern Gate is located between the French Hill neighborhood and the Arab neighborhood of Anata in Jerusalem’s northeast corner, within the Jerusalem city limits.  On each occasion Israeli police forcibly expelled the company’s representatives from the site, without warrant and apparently without legal grounds.

 Part of Mountain Dwellers Ltd.’s property in Eastern Gate has been seized by the IDF for the purpose of constructing the security fence.  Arab squatters have built illegal dwellings on another part, and Mountain Dwellers was forced to go to court to evict them, incidentally establishing in court its rights to the property in question.

 Whenever Mountain Dwellers’ agents attempt to begin work on their property, the police follow a standard procedure:  Mountain Dwellers’ agents are arrested and transported to the police station in Jerusalem Russian Compound. They are interrogated, left to cool their heels for several hours, and then released without charge.  On the last occasion when this happened, August 20, a representative of Mountain Dwellers told police officers that they were trespassing without warrant on private land and insisted that the police leave.  The representative was assaulted, transported to the Russian Compound, and charged with assaulting a police officer.

 On July 31 Mountain Dwellers Ltd. filed suit in Israel’s High Court of Justice requesting a restraining order against the police to prevent the expulsion of its representatives from its land.  The High Court of Justice, however, set a court date in March to consider Mountain Dweller’s suit.  Mountain Dwellers has requested that the court bring forward the date so that it can get on with developing its property.

 The prevention of a private property owner from developing his property within the Jerusalem city limits with no evident legal sanction represents a serious violation of private property rights.  Police have provided no explanation of their interference in the matter, other than to tell representatives of Mountain Dwellers during interrogations that they (the police) acted to secure “public order.”  Police reluctance to uphold rather than violate private property rights in Jerusalem may stem from their desire not to become involved in defending Jewish property rights in an area next to an Arab neighborhood.  If so, it means that the police are prepared to use force to prevent Jewish owners from realizing their property rights rather than defend those rights from possible interference.

 

Pre-2008 Issue Archives

Back to Israel Liberty Monitor Main Page