Building A Jewish Democracy

Israel Liberty Monitor

Volume III Issue 6..  .. 29 Elul 5768 / September 29, 2008

IPC Investigates Politically Motivated Police Violence

The Israel Policy Center has initiated a new human rights project, investigating cases in which unwarranted police violence is employed by the state for illegitimate political objectives. Cases selected for investigation must meet three criteria:
a) They involve the use of police power for illegitimate objects, i.e. to serve the convenience of those in authority rather than a legitimate public purpose;
b) They involve many victims rather than one or a few;
c) They involve the violation of a fundamental right.

As of now the investigation covers three recent episodes:

1. “Eastern Gate.” Eastern Gate is a Jewish owned area of 180 hectares (45 acres) in Jerusalem, between the Jewish neighborhood of French Hill and the Arab neighborhood of Anata. License to develop the property is in the hands of a real estate development firm, “Mountain Dwellers Inc.” Part of the property was seized by the IDF for the purpose of constructing a segment of Israel’s security barrier. Other parts have been seized by illegal Arab squatters. During the month of July and August, Mountain Dwellers sought to realize its property rights and develop the land, at first by establishing an olive orchard. On three separate occasions police arrested Mountain Dwellers’ representatives and charged them with illegal entry. Mountain Dwellers maintains that the police entered its property illegally and without a warrant and interrupted its work without cause. 

Mountain Dwellers’ workers were arrested, charged with various crimes, and a police prosecutor demanded that the court force them to keep away from the property for six months (!) as a condition of their release. Several suffered violence at the hands of the police. In addition the police arrested the CEO of Mountain Dwellers, Mr. Aryeh King, and sought to have him commit himself to refraining from developing the property as a condition of his release. A judge released King, and ordered the police to stop interfering with Mountain Dwellers.

At issue is the possibility that if Mountain Dwellers establishes permanent use of its property, the IDF will be required to move the security fence. The IDF, for its part, appears to have instructed the police to prevent Mountain Dwellers from utilizing its property rights, even though the IDF had no intention of seizing the property outright or paying for it.
 
2. Modi’in. On September 2 various activist groups planned a demonstration against OC Central Command, Gen. Gadi Shamni, at his home in Re’ut, a suburb of the town of Modi’in. Police tracked the busses hired by the demonstrators, stopped them at the side of the road, and hauled dozens of protestors off to the local police station to be investigated for charges of “conspiring to participate in an illegal demonstration.” IPC has identified at least six attested cases where demonstrators were beaten by policemen within the Modi’in police station while under interrogation.

3. Zichron Yaakov. On August 5 a group of left-wing activists tried to demonstrate outside the home of Col. Aviv Reshef, commander of the Binyamin Brigade, to protest the killing of a Palestinian youth during demonstrations against construction of the security fence on the outskirts of the village of Bil’in.

The group of activists in question is notorious for instigating violent demonstrations by Palestinians and left-wing Israelis against the construction of Israel’s security fence near the village of Bil’in. Israeli authorities have done nothing to halt this activity or to arrest those responsible for repeatedly inciting crowds of demonstrators to mass acts of political violence, even though several Israeli soldiers and policemen have been injured as a result.

When, however, these same activists tried to hold a nonviolent demonstration against a senior IDF commander in the vicinity of his home, the police sprang into action. Police action followed the pattern at Modi’in: The demonstration was broken up, and the demonstrators were arrested and charged for attempting to demonstrate. Several became the victims of deliberate and unwarranted police violence.

These cases demonstrate a pattern of illegal and unwarranted use of the police’s authority, as well as illegal police brutality, not for any legitimate purpose of public order but for the convenience of people in authority: Senior IDF officers who would prefer not view demonstrations as they drive home to dinner, or who find it convenient (and cheaper) to prevent citizens from enjoying their legitimate property rights.

IPC seeks to demonstrate that the problem of unwarranted police action is not the problem of any one sector of the population, but affects everybody, no matter what his views, whose legitimate activities are viewed with disfavor by people in authority.  This is the best approach to securing support for effective reform from a wide spectrum of opinion in the public and the Knesset.

The project underlines the need for an impartial body whose task is to review police action and ensure that the rights of citizens are not violated at the whim of powerful people. We would like to look forward to the day when a senior IDF commander, complaining about a scheduled demonstration, is told by his opposite number in the police, “Sorry, pal, that’s part of democracy. We’re not getting involved.”

 

 

Kadima Primaries Leave a Bad Taste in Everyone’s Mouth

Foreign Minister Tzipi Livni, who is now working to reconstitute Ehud Olmert’s Parliamentary coalition and take his place as Prime Minister, won Kadima’s primaries by just 431 votes — 1.1% of the total. The loser, Shaul Mofaz, declined to challenge the results, but some of his supporters are doing so. They have launched an appeal in Kadima’s internal court, but this is merely a preliminary. If they lose there they will undoubtedly appeal to Tel Aviv District Court. If they win, Kadima will have to do its primaries over again. Even if the result is the same — Kadima voters are not likely to be grateful to Mofaz for shlepping them to the polls again — Israel’s political system will be thrust into turmoil.

While there seem to have been irregularities at a few polling places, nobody is accusing the central election authorities of Kadima of wrongdoing. They may, however, have mismanaged the elections, taking controversial decisions that in retrospect will prove to have been mistakes. In the early evening they decided to leave the polls open for an extra half hour, till 10:30. As is often the case in elections, the outcome was widely believed to depend on the turnout; a larger turnout favored Livni, who in the end just squeaked by. According to the chairman of Kadima’s election commission, both candidates’ campaigns complained of lengthy lines at the polls and importuned him to make it possible for more people to vote. Was extending the polling day the right answer? In a race so close, did the extra half hour cause victory to pass from Mofaz’ camp to Livni’s? No one will ever know.

To add to the injury, the media failed to take into account the extension of the polling day and published exit polls at 10:15 in the evening, when many voters were still waiting in line. The exit polls showed Livni with a decisive lead. By morning the polls were proven wrong, but nobody knows how many Mofaz supporters decided to give up and go home at the last minute.

The Knesset Constitution and Law Committee is rushing work on a bill to prohibit the publication of polls during the week prior to primary elections; however, the Knesset is not in session now and there was no way for the bill to become law before Kadima’s primaries were held. A similar law already limits publishing polls before general elections.

Another source of concern is the small number of participants in Kadima’s primaries.  In part, this is a reflection of the small scale of Israeli politics. In the United States, tens of millions of people participated in this year’s Democratic primaries. By contrast, less than 40,000 participated in Kadima’s.

According to some sources, only about 10 or 15,000 members of Kadima’s 74,000 members actually signed up as individuals, most during the initial period of enthusiasm after the party was formed. The rest came from “vote contractors,” individuals who sign up friends and acquaintances and market their votes to candidates for promises of favors and influence. Some of the contractors are the heads of union locals or of extended Arab families — hamulot — capable of dragooning thousands of voters into a political party and instructing them how to vote. It’s hard to call such a system, where votes are bought and sold wholesale, genuine democracy.

Kadima’s primaries did not work well and have damaged the reputation of this method of selecting candidates. Among the solutions proposed is to adopt an open primary system, which is the norm in most American states. This would greatly increase the pool of potential voters and limit the influence of vote contractors.  Another proposed “solution” is to eliminate primaries altogether and go back to the method common in the first decades of Israel’s existence, when candidates were selected by a few party elders in a smoke-filled room.
 

COMMENTARY: (Not) Working As Expected

by Yitzhak Klein In last month’s issue we reported extensively on the new law governing the appointment of justices to Israel’s Supreme Court. Judges in Israel are appointed by a committee of nine, consisting of three Supreme Court justices, two members of the Governing Council of the Israel Bar Association, two cabinet ministers and two Knesset members, only one of whom is from the governing coalition. Since the bar members usually depend on the judges’ good opinion for their livelihood, they almost invariably vote with the judges. The judges have had the committee in their pocket for years. That changed last month. According to a new law sponsored by MK Gideon Saar (Likud) and endorsed by Justice Minister Friedmann, appointment of a Supreme Court justice now requires a supermajority of seven. For the first time since 1953, the government has the ability to block Supreme Court appointments, forcing the judges to bargain and trade for appointments. In our commentary last month we applauded the law as a step in the right direction, to wit, the appointment of judges by elected officials. We also predicted that the new law wouldn’t work. Real power is at stake in the composition of the Supreme Court, and deep philosophical differences divide the current court and two of Israel’s three leading parties — Likud, Kadima. Only Labor generally supports the court. We thought it likely that committee meetings would end in sparks and disagreement, as government and justices competed for the right to decide what kind of philosophy — and whose institutional interests — would dominate the bench. Since going back to the old system of appointment is unthinkable, we believe that in the end the government and Knesset will have to take judicial appointment into their own hands (after passing appropriate legislation), simply to make the system work. It hasn’t taken long to provide strong support for our argument (see related news item in this issue, “Supreme Court Justices Walk Out of Judicial Appointments Committee”).. Justice Minister Daniel Friedman called a meeting of the Judicial Selection Committee for Monday, September 22. On the agenda: Appointing three Supreme Court justices. It’s generally agreed that the Court is groaning under its heavy caseload and that three new justices are desperately needed. It was also clear that Friedmann would insist that at least one of the new justices be picked by himself. The justices on the Supreme Court refused. Pulling what can only be called a fast one, they announced that the Committee lacked authority to act because the government was in transition; Prime Minister Olmert had resigned less than 24 ours earlier. It’s not as if his resignation changed anybody’s mind about the merits of the various candidates under consideration. What changed was the judges’ assessment whether the next meeting of the Committee will be chaired by Justice Minister Friedmann or by someone else. Friedmann wants to change the ideological composition of the Court and cut back on its prerogatives. He and Chief Justice Dorrit Beinisch have been at loggerheads ever since Friedmann was appointed. Apparently, the prospect of a new man in the Justice Minister’s seat was worth almost any sacrifice to the justices. Beinisch’s surprise did nothing for her reputation. She is viewed as a wheeler-dealer in the realm of appointments, using her powers to promote her friends and block qualified candidates who have aroused her personal ire. Her decision underlines the fact that she is a poor steward of the interests of the Israeli judicial system. Her action prostituted the law to her personal and political interests; as Justice Minister Friedmann pointed out, Beinisch herself was appointed by an interim government in 1995. It is precisely such manipulation of the law for the sake of narrow sectoral or institutional interests that undermines the prestige of the Supreme Court and causes wide segments of the public to view the current extent of its powers as illegitimate. The smart thing for Beinisch to have done would be to genuinely try to make the new system work. By plumping for a momentary advantage in a manner that seems patently unfair, Beinisch is only hastening the day when judicial appointments are taken entirely out of her — and the court’s — hands.

Supreme Court Justices Walk Out of Judicial Appointments Committee

(Jerusalem, Sept. 22)  The three justices who serve on Israel’s Judicial Selection Committee — Chief Justice Dorrit Beinisch, Justice Edmond Levi and Justice Ayala Procaccia — walked out of the session of the Judicial Appointments Committee scheduled for today. Without the justices the committee lacks a quorum to make appointments. The Committee had been convened by Justice Minister Daniel Friedman to appoint three new justices to the Supreme Court.

The Judicial Selection Committee appoints all judges in Israel, including justices of the Supreme Court. Besides the justices, it includes two representatives of the Israel Bar Association, two cabinet ministers and two Knesset members, one each from the governing coalition and the opposition. 

Traditionally, the justices and the Bar Committee members vote as a bloc, giving the justices an automatic majority. A new law, however, passed earlier this month, requires a supermajority of seven to appoint Supreme Court justices, giving the government for the first time the power to block appointments and force the justices to bargain to secure appointments for their preferred candidates.

The committee met at a time when the Supreme Court is understaffed (12 justices) and overwhelmed with a huge caseload. Three new justices are urgently needed to take up some of the caseload and hasten the movement of dockets through the Court.

Despite this need, the three justices preferred to block the committee’s action. Citing a Supreme Court case from 2005, they declared that a transitional government could not appoint judges. Prime Minister Olmert had resigned the previous evening, turning his government into a transitional government until a new government is appointed.

The justices’ move came as a surprise. Attorney General Mazuz was summoned to the meeting, where he gave his opinion that the Judicial Selection Committee, only two of whose members are Cabinet ministers, may function normally even during a transitional government. However the justices rejected his opinion.

Though it is generally agreed that the appointment of new justices is urgent, the justices currently serving on the Judicial Selection Committee may have felt that it was to their tactical advantage to wait before appointing new justices. In a new government, Daniel Friedmann may no longer be Justice Minister. Friedmann is an advocate of broadening the ideological views represented on the bench and of curbing the Supreme Court’s prerogatives, and his tenure has been characterized by tension and conflict with the Supreme Court and especially with its Chief Justice, Dorrit Beinisch.
 

Tzipi Livni Begins Forming Government

The newly elected head of Kadima, Tzipi Livni, began forming her governing coalition this week after President Shimon Peres commissioned her to do so on Monday, Sept. 22. Ehud Olmert, who resigned on Sunday the 21st, remains interim Prime Minister until Livni succeeds. If Livni fails to secure the support of a majority of the Knesset, Israel will go to elections, but it now seems likely that Livni will be able to reconstitute Ehud Olmert’s coalition.

Several important issues are at stake in the negotiations. Labor may well demand the replacement of Justice Minister Daniel Friedmann, who favors significant reform of the powers of the judiciary and seeks to influence the composition of the Supreme Court. Labor has positioned itself as the defender of the judiciary’s interests, identifying them with “rule of law.” Livni does not share this perspective.

In negotiations with Shas, Livni will face demands in two separate areas. Shas may seek to restrict further the scope it gives Livni to negotiate a settlement with the Palestinians. Till now Shas has insisted that the negotiations, which Livni conducted as Foreign Minister, not include Jerusalem. At the same time Shas has consistently refused to take seriously well-founded rumors that in fact all subjects, including the division of Jerusalem, are being discussed with the Palestinians, relying on Livni’s denials to justify its continued participation in Olmert’s government.

Shas’ other demand is to restore all or part of Israel’s generous social welfare policy, sharply cut back five years ago when Binyamin Netanyahu became Finance Minister in the depths of a severe recession. Both Netanyahu of the Likud and the Kadima party see the permanent reduction of social welfare benefits a key element in the economic strategy that has enabled the Israeli economy to grow rapidly in the last five years. Raising social welfare expenditure at this juncture is likely to reduce the Israeli economy’s ability to ride out the effects of a global recession, if one is caused next year by the American financial crisis.

Another issue hovering on the edge of the negotiations is the prospect that Israel may soon take unilateral action against Iran’s nuclear project. This would almost certainly plunge Israel into renewed warfare with Hizbullah in Lebanon and Hamas in Gaza, and may well involve Syria as well, amounting to a security challenge unequalled since the Yom Kippur War. Defense Minister Barak called for the Likud, under Netanyahu, to join a national coalition government. Netanyahu for his part professes no confidence in a Livni-Barak government, claiming that their policy of negotiation with the Palestinians and Syria is inconsistent with Israel’s acute security concerns and is likely to lead to Iran and its proxies establishing control over the Golan Heights and the West Bank. For now, the Likud will remain in opposition.
 

Supporters of Inclusive Conversion Policy Sweep Elections to Chief Rabbinate Council.

(Jerusalem, Sept. 23)   In elections to the Chief Rabbinate Council, supporters of more inclusive conversion policies won a resounding majority of the seats at stake.

At stake were the ten seats on the Chief Rabbinate’s governing council that are filled by election. The electoral body is a group of 130 rabbis and elected officials from Israel’s largest towns and regional authorities, plus another 20 “public figures” appointed by the government and the two Chief Rabbis. The total composition of the Council is 16; Israel’s two Chief Rabbis (one Ashkenazi, one Sephardi) and one chief rabbi from each of Israel’s four largest cities (each also has two rabbis, who alternate in office) are members ex officio. The Council is the Rabbinate’s chief administrative and policymaking institution.

Of the ten elected members, eight represented a coalition formed by Religious Zionists and the Shas party. The Sephardic Chief Rabbi, Shlomo Amar, associated with Shas, is an advocate of more inclusive conversion policies who has been frustrated in his attempts to impose his desired policy on Israel’s rabbinical courts.  Sharing his frustration has been Rabbi Haim Druckman, a leading Religious Zionist rabbi whom Rabbi Amar appointed to head a new conversion authority. 

In an unprecedented and highly controversial decision this year, a rabbinical court declared invalid thousands of conversions performed under more inclusive procedures in recent years, thrusting thousands of new converts into limbo. The decision was taken by judges (dayanim) of the Ashkenazi Haredi extraction, who disapprove of the policy of encouraging the conversion of immigrants to Israel who are not Jewish according to Halacha. The decision was controversial in Rabbinic circles and generated widespread public outrage. 

The results of the election to the Chief Rabbinate Council are a sign of backlash against the rabbinic factions who oppose inclusive conversion policies. The Chief Rabbinate Council does not have the power to appoint or dismiss judges, but the formation of a coalition opposed to more restrictive policies shows that eventually a more liberal policy is likely to percolate into the rabbinical courts as well. The electoral body that elected the Council also appoints the Chief Rabbis; the Chief Rabbis and two Knesset members are members of the body that actually appoint rabbinical judges. If the coalition formed by the backlash persists, opponents of a more inclusive conversion policy may find themselves excluded from appointments to rabbinical courts and other crucial bodies where official policy on religious affairs is formed.
 

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