Monday, August 23, 2004

This week we read: ve-shaftu et ha'am mishpat tzedek.

I've blogged numerous times on the evils of Israel's method of appointing judges. The system is designed to enshrine the self-conscious-about-being-too-Jewish bias of the current court. One might wonder, though, whether this alleged bias ever is manifest in decision-making. These judges are professionals, aren't they?

Conveniently, court rulings can often be paired so that elements of the pairs are highly similar except for the political-religious orientation of the plaintiffs/defendants. Consider the following five pairs of cases:

1. Binyamin Zev Kahane of (then still-legal) Kach was convicted of sedition for calling on the Israeli Air Force to bomb Um el Fahm. Muhammad Jabarin, an Arab Journalist, was convicted for sedition for publishing a laudatory article about a terrorist attack. Both appealed to the supreme court. On the same day in November 2000, the court accepted the appeal of Jabarin and rejected that of Kahane.

2. In 1999, Minister of Communication, Yitzhak Levy of Mafdal, appointed members to the Second Authority Council (Moetzet haReshut haSheniah) in charge of making policy for public TV stations (other than Channel 1 which is under the IBA). Although, it was within his authority to do so and procedures were followed, the court disqualified his appointments arguing that "he failed to properly consult the appropriate experts". The following year, when then-Minister Dalia Itzik of Labor appointed members to the same council following the same procedure, the appointments were upheld by the court.

3. In 1988, a Jew named Avitan sued to be allowed to buy land in an area reserved for Beduin settlement. His suit was rejected on the grounds that "the State has an interest in encouraging Beduin settlement". In 2001, an Arab named Kaadan sued to be allowed to buy land in an area reserved for Jewish settlement. His suit was accepted.

4. In 1999, one week before elections, then-Prime Minister Netanyahu of Likud ordered the closing of the Orient House, which effectively served as the home of Palestinian government in Jerusalem. Supreme Court Justice, Dalia Dorner, issued an injunction against the closing, arguing, somewhat mysteriously, that the decision was "political". Later that year an appeal to the court to require the Labor government of Ehud Barak to prevent the massive destruction of Jewish artifacts on Har haBayit was rejected on grounds that "the court does not interfere in State decisions".

5. In 2000, then-Prime Minister Barak of Labor appointed Yossi Ginosar as an advisor. The court rejected appeals to disqualify Ginosar on grounds of his involvement in the Bus 3oo scandal. (BTW, there were about a thousand reasons to reject the appointment.) In 2001, Prime Minister Sharon of Likud appointed Ehud Yatom as an advisor. The court disqualified Yatom on grounds of his involvement in the Bus 3oo scandal.

Certainly, there is no shortage of explanations for each decision. But save your breath because I have two words for you: Ockham's Razor.

But let me not be petty. This week we also read: kol tzofayich nasu kol yachdav yeranenu, ki ayin be-ayin yiru beshuv hashem tzion. Those eyes are our eyes. Can a Jew ask for more than that?


Anonymous Anonymous said...

If only somebody over here had read Tocqueville before they set up the Judicial branch. Excepting an outright miracle, I don't see how this is going to change for the better. It's nigh impossible to insert checks into a system where none exist. Any ideas, Ben?
Oh well, I just look at the Court as one of the requisite yesurin counted toward our communal (and my personal) acquisition of Eretz Yisrael.

10:27 PM  
Blogger Ben said...

The solution is to change the appointments process so that elected representatives get to choose representative judges. But you know that as well as I do.

11:12 PM  
Anonymous Anonymous said...

Yes I do. I was asking if you had any ideas about how such a Herculean task might actually be accomplished. It doesn't seem that any political power or NGO will ever be able to muster the necessary force.

R. Brand

11:23 PM  
Blogger Ben said...

Don't despair. There is probably a majority in vaadat chukah right now in support of overhauling the system. It is stalled mainly because the coalition agreement with Shinui does not allow changes such as this without Shinui's consent. This may soon change.

12:05 AM  
Anonymous Anonymous said...


I take it you've seen this?

Sarid is definitely correct about one thing (Bork made the same point in his most recent book): The reason Israelis turns to our High Court so often is because we feels there is nowhere else to turn. (The fact that everybody and their second cousin has standing to petition the court doesn't help much, either). It's no wonder then, that the Court has amassed so much power.

But I do not share his sympathy for the court for the fact that public opinion restrains them. This minimal restraint is all that remains.

R Brand

3:22 PM  

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