Building A Jewish Democracy

Israel Liberty Monitor

Vol III, No. 1 - 12 Nissan 5768 / April 17, 2008

Political Pressure Groups Lobby for a Constitution incorporating “Arab Communal Rights,” “Social Justice.”

Dr Jaafar Farah, Director of "Mossa-wa," which supports a binational state, mobilised the coalition of pressure groups.

On March 30 a coalition of political pressure groups describing themselves as "civil society groups" met with MK Prof. Menahem Ben-Sasson, Chairman of the Knesset Constitution and Law Committee, to demand that the Committee adopt a constitution that would move Israel in the direction of a binational, Jewish-Palestinian state, while creating a constitutional "social rights" enforceable by
the courts.

The leading organizations of the pressure group are Mossawa, a lobby for Arab national rights in Israel, the "Union for Scientific, Religious and Cultural Liberty (Hebrew acronym: "Hemdat"), and the "Center for Jewish Pluralism," affiliated with the Israeli Reform Movement. Mossawa and its chairman, Jaafar Farah, who signed the position paper, have called for Arab self-determination within Israel and the creation of a binational state

The Knesset Constitution and Law Committee has been considering constitutional drafts for five years but has yet to adopt an official draft. Two full drafts of a constitution have been laid on the committee's table by private policy institutes. Common to the drafts are clauses describing Israel as "the national home of the Jewish people" with "a democratic system of government" (draft of the Institute for Zionist Strategies, which the leaders of IPC helped create) or as "a Jewish and democratic state" (draft of the Israel Democracy Institute).

The "civil society" pressure group intimated that neither draft constitution was acceptable. It gave Ben-Sasson a position paper describing Israel as a democratic state, significantly omitting the usual rubric, "Jewish and democratic." The paper calls for recognizing the "communal rights" of Israel's Arabs, a code-word for political autonomy. Israel is to become a country in which the Jewish people "realizes its right to self-determination," a much weaker and ambiguous phrase than "sovereignty" or "independence."

The position paper called for the inclusion of four elements in a constitution:

1. Recognition of a "right to equality;"
2. Recognition of the "communal rights" of Israel's Arabs
3. Securing "social justice" by recognizing "social rights" and making them enforceable by the courts;
4. Strengthening the autonomy and authority of the judiciary.

The "civil society" position paper stated that it was better to have no constitution than a "bad" and "flawed" constitution that omitted these four elements.

Some news sources report that MK Ben-Sasson expressed support for the "civil society" pressure group's positions. Ben-Sasson was pleased that Mossawa participated in presenting the position paper, since Israel's Arabs have for the most part boycotted the committee's constitutional deliberations. Ban-Sasson has hitherto been considered a partisan of the Israel Democracy Institute's draft constitution. Most members of his committee have expressed private reservations that this draft does not do enough to affirm Israel's Jewish identity, and are not prepared to support it at this point.

According to the "civic society" pressure group's documents, the position paper was supported by the following organizations:

• Mossawa
• "Hemdat"
• The Center for Jewish Pluralism
• The Association for Civil Rights in Israel
• Agenda
• Naamat
• The "Oriental Democratic Rainbow" ("Keshet Demokratit Mizrahit"),
• Tabka
• Adva
• The Women's Lobby
• Abraham Fund Initiatives
• Shatil
• Yedid
• The Association for Protection of Mixed Families
• Lehatav Association
• Kolech
• Dead End ("Mavoi Satum")

Common to most of these organizations is that they receive significant funding from the New Israel Fund. Shatil is the operational arm of the Fund in Israel.

Israel Policy Center Wins Big in Jerusalem District Court (February 13, 2008)

Judge Moussia Arad, President of Jerusalem District Court.

In a precedent-setting decision, Judge Moussia Arad of Jerusalem District Court ordered the State Prosecution to hand over to IPC all its files regarding decisions to indict (or not indict) people for the offenses of “insulting a civil servant” or “insulting a judge.” The court’s decision covers the years 2001 to 2007 and will enable IPC to evaluate whether the State Prosecution exhibited political bias in deciding whom to indict and whom to let off. 

The Jerusalem District Court decision is already making waves in Israel’s legal community.  Defense attorneys in criminal trials around the country are requesting information regarding the State Prosecution’s past policy regarding indictments for the offenses with which their clients are charged.  The City of Jerusalem’s legal department circulated the decision to all its attorneys with instructions to consider how the decision can be used in the City’s interests. 

Background:  The Elizur Segal Case 

In 2004 Rabbi Elizur Segal published an article on the internet critical of the then-Chief Rabbi of the IDF, Yisrael Weiss.  In response the State Prosecution indicted Segal for “insulting a civil servant.”  IPC is participating in Segal’s defense (see related article), because of the fundamental civil rights issue involved:  In a free country, legal authorities cannot stifle public debate by indicting people who criticize government policies or the civil servants who implement them. 

In his defense brief, filed by IPC’s counsel Attorney Itzhak Bam, Segal argued that he was being discriminated against because of his political views.  People far more prominent than Segal have said or written harsh things about civil servants without being molested by the State Prosecution.  For example, Rabbi Ovadiah Yosef, spiritual head of the Shas party, termed Israeli judges “vermin-eaters,” and worse, in a public lecture. Dana Olmert, the daughter of Prime Minister Olmert, called former Chief of Staff Dan Halutz a “murderer” in a public demonstration.  Neither of these two prominent maledictors has been charged.  

Update:  State Prosecution Appeals Segal Verdict to Supreme Court.  See related article. 

COMMENTARY: THE FRIEDMANN WARS

The latest shtick by opponents of Justice Minister Daniel Friedmann’s proposed reforms of the Israeli legal system is to issue dire warnings that reform will lead to corruption in the courts.  The syllogism runs thus:  Friedmann wants to give a greater say in selecting judges to elected politicians; politicians are corrupt; therefore the politicians will appoint corrupt judges, who will sell indictments, verdicts, sentences and judgments to the highest bidder. 

The scaremongering broke surface a couple of weeks ago with an article in Haaretz by Ari Shavit, editor of the newspaper’s weekly magazine, who thinks Israel has gone from bad to worse since losing the Second Lebanon War.  Shavit published a delicious piece of black humor (alas, we only have a link to the Hebrew version) purporting to be a secret progress report by a senior spin doctor to his employers, the 19 wealthiest families in Israel, who really control everything, including Olmert, whose job is to distract and entertain a bovine public while the oligarchs run state and society for fun and profit.  The spin doctor reports with unctuous self-satisfaction on the complete success of the project and outlines the main objectives of the coming year, including using the unwitting crusader Daniel Friedmann to “subject the rule of law to the rule of capital . . . just as we opened politics and the media to market forces, so we will be able to open the closed world of the law to market forces, turning justice into a commodity and making verdicts and indictments tradeable.” 

The term “crusader” that Shavit applies to Friedmann is also used by Aharon Barak, Israel’s former Chief Justice, in an interview with Shavit, to be published this Friday and awaited with bated breath by Israel’s chattering classes.  In a preview of the interview published on Tuesday the 8th (see report here), Barak claims Friedmann will destroy democracy, wipe out protections for civil rights, and turn Israel into a “third world country” where justice is for sale.  Israel’s justice system is the last, best bulwark of its beleagured democracy.  (By the way, Shavit himself used to express a rather more skeptical view of the political role of Israel’s justice system.) 

Now frankly, this is the language of hysteria, for which the antidote is a little common sense.  Let us first note that Israel’s present legal system is neither transparent nor a paragon of virtue.  Precisely because it is now a “closed world,” subject to no external oversight, checks or balances, Israel’s justice system is widely perceived today as mediocre, incapable of providing the service the public expects of it—the swift and fair resolution of disputes—and not immune to corruption. Judicial appointments can be corrupted by politics even when—perhaps particularly when—decisions are made by a few judges behind closed doors, as is the case today. 

Thus the Chief Justice, Dorit Beinish, has for years conducted a vendetta against a jurist for whom she nurtures personal animosity, Professor Nili Cohen of Tel Aviv University, even though most experts think Cohen is eminently qualified for the Supreme Court (and far more qualified than Beinish herself, who never completed her master’s degree).  The Attorney General, Menahem Mazuz, has been unaccountably lenient toward the corrupt affairs of the Sharon family, who pursued (when in office) policies Mazuz liked. Mazuz also invented a new tax ruling to keep Beinish’ husband, Yehezkel Beinish, out of jail when a nonprofit organization he controlled failed to pay payroll taxes.  Meanwhile, four of the last eight Justice Ministers were investigated or indicted by their subordinates, some on charges admitted after the fact to be trumped up, just to keep them in line.  Giving politicians more say in a closed appointment system may change the beneficiaries of corruption somewhat, but it’s not as if it would create corruption where there was none before. 

The true antidote to the threat of corruption is transparency, and the best way to achieve transparency is to hold the appointments process in the open, which means basing it on the American model:  Force judicial candidates to answer hard questions in public hearings, where any questions of impropriety will be brought to light by industrious opponents, with confirmation votes in the Knesset afterward. Granted that some politicians are corrupt, they are unlikely to be able to influence most of the appointments made in such a fashion.  Properly constructed, such a system would go a long way toward ensuring propriety in appointments while ensuring equally that judges did not come from some radical legal or political fringe.  Unfortunately, Friedmann has hitherto proven too timid to advocate this kind of open system.  If there is any truth to Barak’s accusations, it’s because Friedmann’s reforms do not go far enough. 

Lastly, Barak, and Shavit echoing him, both express a profound mistrust of, and misunderstanding of, democracy.  According to Barak, democracy is secured precisely when a judicial priesthood, dependent at no point upon the popular will, steps in to thwart that will and protect the rights of minorities.  Democracy, in other words, is too precious to be entrusted to the people, who will ruin it.  If that thesis is correct, then we may as well give up this whole democracy business as hopeless and admit that Israel really has only the choice implied by Shavit’s humorous article:  Rule by a financial oligarchy, or by an oligarchy of sanctimonious high priests of justice. 

In fact, the last, best bulwark of any democracy, beleagured or not, is the people.  When in doubt, I’d trust them. 

Prof. Barak: Justice Minister Friedman “will destroy Judiciary”

Prof. Aharon Barak, former Chief Justice of Israel’s Supreme Court, launched an attack of unprecedented harshness upon Justice Minister Daniel Friedmann, claiming that Freidmann’s reforms of the judiciary will “destroy the courts,” endanger democracy, and turn Israel into a “third world country,” where courts do not have the power to defend civil rights and politicians determine the composition of the court according to their personal interests.  Barak made his remarks in an interview to appear in this Friday’s Haaretz and reported today (Hebrew source). 

Justice Minister Friedmann is attempting a thorough overhaul of Israel’s judiciary, including changing the way judges are appointed so as to give elected officials a greater say, limiting the court’s jurisdiction over foreign and military affairs, and allowing the Knesset in certain circumstances to reinstate legislation overturned by the courts.  Barak claims that these reforms will “politicize” the judiciary and limit the court’s ability to defend the civil rights of minority groups. 

Barak’s attack on Friedmann is the latest in a series of critical statements by partisans of the Israeli judiciary.  Barak himself was the chief author of the Israeli Supreme Court’s judicial activism, which some consider the most pronounced in the democratic world.  As an academic, Prof. Friedmann was a vocal and open critic of Barak’s judicial activism, which he claimed compromised the democratic principle of rule by the people.  As Justice Minister, Friedmann seeks to eliminate court practices he considered abuses when a private citizen. 

A recent theme among critics of Friedmann has been that giving elected officials a greater say in appointing judges will corrupt the judicial system, enabling verdicts and judicial appointments to go to the highest bidder. (see Commentary, this issue)

Jerusalem local court eviscerates a “religious” law

On Thursday, April 3 Judge Tamar Bar-Asher-Tzaban of Jerusalem’s court for local affairs dismissed cases against a pizzeria and a grocery in the city that sold hametz (flour products with leavening) during Passover last year.  The ruling came less than three weeks before this year’s Passover. 

The businesses were charged under a 1986 law that prohibits the display of hametz for sale during Passover, when Jewish religious law (halacha) prohibits the possession or consumption of hametz.  The law applies only to commercial sale and does not affect private behavior, though it can inconvenience those who wish to buy and consume hametz during the holiday.  Judge Bar-Asher-Tzaban ruled that the language of the law forbade only displaying hametz for sale in the public domain, i.e. out in the street.  Displaying and selling hametz inside a grocery or pizzeria was not in the public domain, she ruled.  Hitherto, sale within a business open to the public has been considered sale in the “public domain.” 

Israel’s religious political parties view the law as contributing to the Jewish character of the state.  The ruling revived a longstanding controversy regarding the manner in which Israel’s courts enforce, or neglect to enforce, laws passed by the Knesset that embody halachic norms.  In this case, the law was not struck down by the Supreme Court, nor invalidated because it restricted fundamental rights.  A judge in a minor court of law eviscerated the law by giving it an interpretation different from what has been customary for the last 20 years. 

Shas, a religious party in Israel’s ruling coalition, threatened a coalition crisis unless the law was amended to close the loophole opened by Judge Bar-Asher-Tzaban.

Political Activist Committed to Psychiatric Ward by Police

In the wake of a report in Makor Rishon on April 2, IPC began to investigate the case of “K,” a political activist who was forcibly committed to a psychiatric hospital by Israel’s police while under arrest. 

“K” (identifying information withheld to protect his identity) cultivates an olive grove on unregistered land in Samaria.  Though Jordanian law, valid in Samaria, allows anyone to cultivate unregistered land and establish ownership thereby, the IDF’s Civil Administration declared “K’s” olive grove a forbidden military zone.  “K” was arrested on March 19 and taken to court on the 20th.  A judge informed him that he would be released if he signed a commitment not to enter his land for 6 months.  “K” refused, and spent the next five days being transported by the police between courtrooms and various prison facilities in Judaea and Samaria. 

“K” told IPC that he was subject to physical abuse as a child and reacts to episodes of abuse by sleeping for long periods.  After one such episode while in custody, he awoke on March 23 to find that the police had obtained a warrant from the Jerusalem District Psychiatrist for his involuntary commitment to Eitanim Psychiatric Hospital in Jerusalem.  “K” was confined in a restricted ward and brought before a psychiatric evaluation committee on the 24th.  After a 20-minute conversation with “K” the committee decided he was quite sane and told the police to remove him from the hospital. 

After spending seven days in prison or hospital “K” signed the commitment not to enter his land and was released.   

Any episode in which involuntary psychiatric restraint is applied to a prisoner, particularly one arrested under circumstances reflecting political controversy, is very serious.  “K” has given IPC’s attorneys power of attorney.  IPC is now gathering documents from the police, the District Psychiatrist, and Eitanim Hospital and will investigate the case.

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