December 25, 2008
by Barry Chamish
In 1997, an attorney visited me twice hoping to convince me that the president of Israel's Supreme Court, Aharon Barak, was involved in the Rabin assassination. He insisted that Barak is, "the most dangerous man in Israel. He's taken over the state. In my circles, Peres may be the chief suspect but he couldn't have done it without Barak's approval." He added, "Why do you think Meir Shamgar ran the commission of inquiry? He was the Chief Justice of the Supreme Court and that means the Supreme Court has taken full responsibility for controlling the crime." My problem is the Supreme Court certainly turned down every appeal to it to re-investigate the murder, so it abetted the murderers of Rabin, but I could find nothing on Barak himself. And I just didn't have enough legalize in me to understand how powerful Barak really is.
Then, in December 2008, I gave a speech in Omaha and my sponsor was a rabbi, Jonathan Gross, far wiser than I, who had delved in depth into Israel's current decay. He recommended a book he possessed to understand the quick and unstoppable decay in Israel's core values. The book is Coercing Virtue by Robert Bork.
Admittedly, I was reluctant to even look at the book because Bork gained judicial power after Pres. Nixon ordered his attorney general, Archbald Cox, to fire the special prosecutor investigating Watergate. Cox refused, his deputy refused, but Bork, by process of elimination, rose to the office of attorney general by signing the order. That said, my prejudices were overcome by Bork's later integrity, and the good rabbi gave me the book to study at home.
Bork was the inspiration to my finally understanding Barak. He explains how Barak took over the state, substituted justice for oligarchy, and has, indeed, gone to great lengths to protect Peres.
Coercing Virtue explains how the Knesset was taken over by the Supreme Court. As the new Prime Minister, Rabin, took office in 1992, a law was passed that was, in essence, Israel's unknown constitution. Without even reading the clauses of the law, without debating its provisions, with fewer than half of Knesset members in attendance, the Knesset passed a law giving executive powers to the Supreme Court. From this point on, anyone could get an instant hearing on their petition to indict any member of the government. The petitioner need not have been personally injured by the Respondent, and no long lower court process was required to get a hearing from the nation's highest court.
The real change of regime occurred when PM Rabin opposed a Supreme Court ruling that his coalition partner, Rafael Pinchasi, could be stripped of his Knesset immunity and tried for corruption. Without Pinchasi and his Shas Party, Rabin couldn't form a governing coalition. Rabin ordered the government's attorney general to present its arguments to the Court and he refused to defend Rabin. The only party legally authorized to defend the government is the attorney general and when he said no to Rabin, he and the Supreme Court took over Israel, including its military forces. We cite Bork's Coercing Virtue:
pp. 111 - Pride of place in the international judicial deformation of democratic government goes not to the United States, nor Canada, but to the State of Israel. The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court in the world has achieved. Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislative and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. No act of imagination is required. Israel's Supreme Court has done them all.
pp. 112 - The extraordinary events cannot be understood without reference to one man, Aharon Barak. From the beginning of his tenure on the Supreme Court in 1978 to his assumption of the court's presidency in 1995, Barak has been the dominant figure in Israeli law...and the single most influential person in Israeli public life.
pp. 114 - Barak has reshaped the law so that practically any subject, no matter how political, may be decided by the court.
Israeli Legal Advice: Fire On Gaza Only In Open Areas
Israel Defense Minister Ehud Barak requested advice from the security establishment's legal adviser to enable the Israeli army to fire into Gaza, due to the escalation in Gaza rocket fire in the past month.
The Legal adviser to the Israel Ministry of Defense, Mr. Ahaz Ben-Ari stated in his opinion that according to international law, fire can only be aimed at open areas, yet not at built-up areas. "There is no blanket prohibition in international law on artillery fire towards military targets in the Gaza Strip," wrote Attorney Ben-Ari. "However, in light of the fact that artillery fire has a very low level of accuracy, and causes a relatively high degree of damage, artillery fire can only be carried out towards relatively open areas, if it is believed that the rocket cells will be hit as a result and that the launches from these areas will be stopped or reduced, and this fire will not cause excessive damage to civilians who may be in the area."
Mr. Ben-Ari made it clear that in any case, "carpet bombing" was not authorized, even if the population had abandoned the area, in order to prevent complete destruction of civilian property. What Mr. Ben-Ari did not consider was that any warning delivered by the Israeli army of imminent attack on an Arab village would generate a counter response, with the likelihood being that terrorists would invite TV crews and various levels of the civilian population to act as human shields against any planned Israeli attack.
pp. 114 - Even an activity, bearing the greatest political character, such as the making of war and peace, is examinable by judicial criteria...The extremes to which Barak's judicial philosophy can carry him are shown by his statement that the deployment of troops in wartime is a justiciable issue.
pp. 123 - Considering the dangers continually confronting Israel, its responses to terrorist attacks and the threat of invasion have been quite moderate, sometimes arguably too moderate.
pp. 125 - An important means of preserving national security was taken away by the court...Universalistic principles were deployed to harm Israel's security, without adequately weighing Israel's particular circumstance and needs.
pp. 132 - The Knesset is loath to pass laws that it fears a Barak-led court would likely overturn.
Having been victimized by Israeli kangaroo courts, and reporting on endless judicial outrages, I had to find one event as a metaphor for the hideous coordination between the Supreme Court and the government it controls. One incident, found in my book Bye Bye Gaza, stood out as an example of how the court victimizes the people.
In late July 2005, over 50,000 people had gathered in Sderot for a protest organized by the Yesha Council, supposedly to march to Gaza and save Gush Katif. We got in our cars for the mission but the police, predictably if you're me, had blockaded our passage. Thousands of cars pulled over to the side and word was spreading quickly to march half a mile to the blockade to confront the police.
In my car were my friends Jerry and Iris. I said, "It's going to happen at last. Let's meet the police and push them out of the way." Iris felt like me, nervous about police reaction, but knowing that if Gush Katif was to be saved, we had to defeat the authorities. Jerry joined us, but was worried how injury or arrest would be viewed at work.
Half way to the police lines, worried Yesha Council workers ran up and down the lines, warning everyone to get back in their cars because, "The Bagatz, (the Supreme Court), is hearing our petition to continue right now."
As I watched the mob return to their cars, I said to Jerry and Iris, "Let's go home. Gush Katif is gone."
Twice as Many Indictments, Half as Many Convictions
Another statistic shows that while the rate of indictments per criminal case averages 14% across the country, in the Judea and Samaria District it was no less than 38% - more than twice the national average.
Even more significant, however, is the rate of convictions: While across the country, 97% of those indicted on criminal files are convicted, in Judea and Samaria it is only 54%. The report therefore concludes that the judicial system ends up doing the “filtering out” work that the police are supposed to do, “and this is a grave blow at the basic civil rights of suspects in Judea and Samaria, who, because of the selective law enforcement policies, find themselves in the status of ‘accused’ who are forced to defend themselves in court, with all that that implies, in order to regain their status of presumed innocence.”
pp. 115 - The court's values implement a socialist impulse to cultural and social affairs. They are universalistic in scope, and to the exclusion of competing values, stress such concerns as dignity, freedom, and equality of individuals. As rhetoric, those words are highly persuasive, as operational concepts, they have often proved highly deleterious.
pp. 120 - There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them... Democracy is slowly being replaced by oligarchy.
pp. 127 - Concern for Muslim sensibilities was reasonable, but concern for ultra-Orthodox sensibilities was not. The court's rejection of specifically Jewish values was also evident in its decisions that the importation of nonkosher meat cannot be banned, new communities sited for defensive purposes may not be limited to Jews, and Hareidi youth groups may not be funded by the government as other youth groups are.
pp. 130 - Barak and his court are redefining Israel's values so that, in area after area of Israeli life, the Jewishness of the state matters less and less...According to Barak, when the values of Israel as a Jewish state cannot be reconciled with its values as a democratic state, the decision must be made according to 'the views of the enlightened community in Israel.'
pp. 132 - The more such cases are adjudicated by a Barak-inspired court, the less Jewish Israel is likely to become.
And as the public's trust in Barak and his court is whittled away, it still protects Pres. Peres with all its contrived might.
The Supreme Court is viewed by the public as the institute which best preserves democracy, as 39 percent of the respondents agreed. and faith in the Supreme Court declined from 68 percent to 61 percent.
Supreme Court Panel: Only the President May Pardon
(IsraelNN.com) In a split decision, a three-judge tribunal of the Supreme Court ruled in principle on Tuesday that the justice minister does not have the option of not signing a pardon signed by the president, according to Maariv/nrg. The ruling requires the government to provide the president with the fullest information possible about any prisoner in question.
The decision was born of disagreement between then-President Moshe Katzav and then-Justice Minister Tzipi Livni about the reduction of a sentence for a convicted murderer, when Katzav overruled Livni's recommendation, based on the convict's behavior in prison. It could be relevant in the release of security prisoners for abducted Israeli soldier Gilad Shalit.
In his minority opinion, Justice Elyakim Rubinstein said the justice minister's option of not signing was part of the system of checks and balances.
pp. 132 - Israel has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere. The sad irony is that the Supreme Court, operating with na Basic Law that specifies that Israel's values are both Jewish and democratic, is gradually producing an Israel that is neither Jewish nor democratic.
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