Beyond the Cusp

June 9, 2016

Israel is the Nation in Need of a Constitution

 

Israel is not going to change all that soon as the thirty to fifty people who run the nation are quite happy to fiddle while things slowly burn down. Part of the problem, and it is a large share, is that over half of those who run the government are not elected but all but self-appointed. There are the Justices who sit on the Supreme Court and the Attorney General, The Supreme Court selection for replacing a retiring Justice is one of, if not the, item which should top the list of systems which require change. Currently the Supreme Court Justices are chosen by a committee consisting of nine members. These are the Justice Minister who acts as the Chairman, a Cabinet Member chosen by the Cabinet, a Pair of Knesset Ministers usually one from the coalition and one from the opposition, two members of the Bar Association and finally the Chief Justice and two other Supreme Court Justices who are often chosen due to seniority. This starts to look like a conspiracy to continue the same policies with no real ability to alter the path when one additionally looks at the committee for selection of the Attorney General which consists of five members; a retired Supreme Court Judge, a former Justice Minister or Attorney General, a Knesset Minister tapped by the Constitutional Affairs committee of the Knesset, an attorney chosen by the Israeli Bar Association, and one legal expert chosen in the subjects of civil and criminal law chosen by the heads of the university law schools in Israel. When all it takes to select a Supreme Court Judge is five votes and three are cast by current Justices, one vote from the current Attorney General who is themselves appointed on the advice partly of a retired Supreme Court Judge, a former Justice Minister and an attorney from the Bar Association and you have what can be conveniently called an echo chamber and it becomes sufficiently evident why the Supreme Court votes almost to the Justice exactly the same as the Supreme Court has since its inception. Add to that the interpretation of the law such that the Justices operate under the auspices of the concept that everything and anything may be brought before the Supreme Court for a final decision.

 

One interesting thing is the Israeli Supreme Court consists of fifteen Justices where one could fairly say that the majority, vast majority, are left leaning or so far left the middle ground cannot be seen through the fog and rose colored glasses. The Supreme Court may appoint any number of judges to hear cases often with as few as three to as many as all fifteen for the most serious of cases brought to the court. Further, for the decade from 2000 through 2010 the Israeli Supreme court heard over 11,000 cases each year. The Israeli Supreme Court can be petitioned directly to hear a case without having it first heard in a lower court. This process is abused by NGOs, often NGOs registered in Israel but primarily funded by foreign governments. Quite often if an NGO states as its aim to serve the support and importance of human rights and/or the rights of minority and oppressed peoples, then you can bet that NGO is financed by the European Union, European governments and foreign NGOs so as to conceal their actual financiers. In any other Western Democratic or Republic such NGOs are required by law to be registered as foreign agents and are not granted official standing as an NGO representing that nation. Israel has twice passed such legislation only to have these very same NGOs bring suit in the Supreme Court where the laws were shot down and nullified. One need keep in mind that the Knesset input in selecting Supreme Court Judges is minimal when one remembers that should the opposition Knesset Minister vote with the Chief Justice and two other Supreme Court Justices and any one of the Bar Association lawyers that makes five votes and the judge has been appointed. The Prime Minister gets no real input and the Knesset does not need to ratify the choice, or simply put, the people have little if any influence on the Justices sitting on a court which has ruled that it can strike down any law, rewrite any law and all but, and possibly including, write laws they feel are necessary or would further empower the Judiciary over the remainder of the government and the people. We have also seen instances where the heads of the Police forces have banned people from visiting areas of the country including the currently extended ban forbidding Ministers of the Knesset from ascending to the Temple Mount. There was a recent case where the Security Shin Bet under the guise of investigating a crime rounded up teens and young men as young as twelve and held them without legal counsel at a secretive location refusing to allow their parents information about their child and used what in many nations would be considered at the least coercive measures and at the extreme torture to try a force confessions from youths they knew were innocent but whose suspected political leanings were not to the head of the Shin Bet’s liking.

 

One young man was held for almost ten months, refused to be permitted to attend his first son’s birth, ritual bris (circumcision), and whose major crime was supporting the Hilltop Youth, a group of youths who support nationalist and Zionist policies and desire a return to Davidic Rule, have never committed an act against the government, most serious offense they commit is camping out and building rudimentary outposts on hilltops overlooking trouble spots which are less dangerous when being surveyed by these youths. The young man in question though had committed a grievous crime, Meir Ettinger committed the crime of being the grandson of Rabbi Meir Kahane, a Zionist and Nationalist Rabbi who argued for his causes and predicted the future extremely accurately before being struck down in New York City after giving a talk. His murderer was acquitted as his act of assassination was seen by the Jury as justifiable as the Rabbi had “extremist views” deserving of being shot. These “extremist views” were best expressed as “Am Yisroel Chai” (עם ישראל חי) , the People of Israel Are Alive, and he also continued the cry of “Never Again” which is a chanting that means the Jews will not go silently to their deaths ever again and murdering Jews will have a price. As was known by even the average Israeli who pays attention to anything political, Meir Ettinger and his friends in the Hilltop Youth were innocent of any wrongdoing and they were hauled in, denied council, denied parental access, held in a secretive location, arranged orders to allow stressful interrogation and extreme interrogation techniques and were sleep deprived for up to three days until their bodies shut down from exhaustion, placed in uncomfortable position, stripped of clothing and made to sit in metal chairs and even denied to have showers or change of undergarments. This was beyond anything used on actual terrorists who when denying and refusing to cooperate have been released for lack of evidence while here their evidence was they knew these kids were guilty of something even if it was not what was being investigated.

 

Another problem are the Basic Laws, laws passed by a simple majority just as any other legislation but deemed special and thus take their place as part of an ever growing excuse for a Constitution. Most of the Basic Laws were passed from 1948 through the early 1960s when Israel was an agricultural socialist society with many Israelis residing on communal farms. These Basic Laws have their place but as they can be amended, refuted, and new ones passed should the Knesset decide any law passed belongs incorporated into the Basic Laws such that they tend to lose their importance and meaning as they can be rescinded by a simple majority vote. Then there is the problem that the Supreme Court can also decide which ones can be amended, removed, added, deleted, twisted, beaded, braded, twisted, spindled and mutilated at will by a majority vote of the Knesset or orders from the Supreme Court. This again placed the judges of the Supreme Court as the ultimate rulers of the land and the Supreme Court had granted the Supreme Court absolute authority over all parts of everyday life including silencing us if they so choose to do so as it was Supreme Court Chief Justice Aharon Barak (August 13, 1995 to September 14, 2006) stated that all things are in his writings some of the following:

 

Aharon Barak, “Judicial Philosophy,” pp. 477 and 485

In my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity-such as friendship or subjective thoughts-is ruled by the autonomy of the individual will, this autonomy exists, because it is recognized by the law…. Wherever there are living human beings, law is there. There are no areas in life which are outside of law.

 

Barak, “The Constitutional Revolution,” p. 30

The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel’s democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.

 

Barak, “Basic Law: Freedom of Occupation,” p. 208

When the attempt fails, and the values of the State of Israel as a Jewish state cannot be reconciled with its values as a democratic state, there is no escape from the need to decide. This decision must be made, in my opinion, according to the views of the enlightened community in Israel. This is an objective test, which refers the judge to the full set of values which shape the character of the modern Israeli.

 

Barak, “The Constitutional Revolution,” p. 34

If up until now judges were given “conventional weapons” to deal with legislation by way of interpretation and the creation of Israeli common law, now judges have been given “nonconventional weapons,” which allow nullification of legislation which does not observe the Basic Laws’ criteria.

 

This was a definitive part of Aharon Barak’s judicial philosophy which devolved, not developed, as his tenure on the courts and in practice where he gained contempt for the Zionistic, nationalist conservative swing the people of Israel took over his lifetime. The gaining of a distinct and traditional Jewish, and in many cases Israelite, determination and movement from secularist to a religious Zionistic populace where he saw the only way to salvage the utopian leftist dream was for ultimate power to be vested in the Judges which by their manner of selection remained stuck in 1958 Israel with its collectivist society and socialist governance could be maintained even if that required the judges to decide on each law if it should stand or be struck down or even rewrote to the judicial review standards which precluded change. His view of such is further described as we continue.

 

United Mizrahi Bank, p. 352

With legislation of [the new Basic Laws] a substantial change occurred in the status of human rights in Israel. They have turned into constitutional rights. They have been given supra-legal constitutional status. A “regular” law of the Knesset cannot change them. Regular legislation cannot infringe a protected human right unless the demands set out in the Basic Laws are met. Nonobservance of the constitutional demands turns the regular statute into an unconstitutional statute. This is a statute which bears a constitutional flaw. The court can declare its invalidity.

 

There is this infamous quote often attributed to Barak is that “everything is adjudicable,” which was often presumably the motivation and empowering ideal through which the meaning was taken that the High Court should be able to rule on any matter, including cases involving Israeli military activity in Judea and Samaria and breaches of civil liberties, and not just on issues relating to national laws. Even if Aharon Barak had not stated such, the courts in Israel today, and especially the Supreme Court, are acting as such and seldom refuse a case where they are the sole practitioner of whether legislation passed duly by the representatives of the people who instructed the members of the Knesset with their support to produce legislation as an unwritten contract bound in the ballot box now sits beneath the raised gavel which determines whether or not the people and their elected officials are capable of self-governing or are they merely children who have no right to address the issues of the day as they see fit. This is why it is long past time for the Knesset to appoint a select committee, they may wish to make sure the Supreme Court does not get wind of this as they would strike down the committee as a threat to the state and its omnipotent judiciary, and direct them to draft a Constitution based on the theories of limiting the power for a King such that he collects no amassed wealth and must serve the people faithfully and beyond their best abilities. A solid Constitution which places all before the people’s elected officials to decide and limits judges except in the most drastic and obvious of errant departures into forbidden grounds protected by the constitution and not the will of the adjudicator, are left to apply the law faithfully and with the intents of the people. A Constitution which places the police, military and secret services under civilian control and where any officers or enlistee speaks out defaming the state or its elected and appointed individuals which are empowered by the people is punished under codes of proper conduct for military personnel in uniform or representing the State. The Knesset should remain as the house which appoints the Prime Minister but the second half of the legislature should be directly elected by the people. The nation of Israel could be divided into proper districts. These Israeli Voting Precincts for Upper House might be considered as the Negev, Jerusalem & Area, Coastal Plain & Dead Sea, Tel Aviv, Sharon Valley, Western Galilee & Mt. Carmel, Sea of Galilee & Valleys, and Upper Galilee & Golan with each receiving with Five Seats Each for forty seats plus, Three Super Districts; The North (Western Galilee & Mt. Carmel, Sea of Galilee & Valleys, and Upper Galilee & Golan), Central (Jerusalem, Sharon Valley and Tel Aviv), and the South (, Coastal Plain & Dead Sea with the Negev) with Five Seats Each for a Total of Fifty Five.

 

Israeli Voting Precincts for Upper House Totaling Fifty-Five

Israeli Voting Precincts for Upper House Totaling Fifty-Five

 

The Upper House described above, let’s call it the New Sanhedrin, will ratify appointments to the cabinet and senior appellate judges including the Supreme Court. The Knesset (lower House) as stated will appoint the Prime Minister. This method allows the Parties to make their coalition and the Knesset would run exactly as it does now with elections when their term ends after four years while the New Sanhedrin terms will not be dissolved should the Knesset coalition crash and burn, they will serve three year terms with the vote being taken every three years on a set date on the Hebrew Calendar. With the Prime Minister who was appointed as the leader of the coalition and was initially tapped by the President, who will remain being chosen as they are now, after all, we would not want to end the good old party people never change ever and the same problem people show up just in a different Cabinet Ministerial location so that the incompetence gets spread through all of the government. That is why the small adjustment where the Cabinet Ministerial position first have to be validated by both houses thus there will be less if any invent a cabinet post to make this one feel important and receive additional pay while preening around. Then the people placed in these positions must be approved by the New Sanhedrin upper legislature. Hopefully this will lead to placing people from outside the Knesset body into Cabinet posts such that the person responsible for an area of the government actually knows something about the work the department actually performs.

 

The shuffling of the deck chairs on the HMS Knestitanic sailing the icy-waters of incompetent Ministerial appointments will come to an abrupt end. One example is the leader of Yisrael Beiteinu, Avigdor Lieberman, who during his career thus far he has held Minister of National Infrastructure, Minister of Transport, Deputy Prime Minister, Minister of Strategic Affairs, Minister of Foreign Affairs and currently is Minister of Defense. Either Avigdor Lieberman is one of the most intelligent and diversely capable or he had to be ill-prepared in at least one of his positions. Ehud Barak is another regular Minister having been elected not only to hold many varied positions but also served in cooperation or as a member of a number of parties. Israeli politics can confuse even those familiar with parliamentary systems as politicians make new parties, merge parties and change parties sometimes like they change socks. Tzipi Livni has headed two parties while serving in four, where one was a merged pair of parties. Her Career began and appeared steady and content with Likud but then Ms. Livni got the idea that she was destined for greater things and saw her opportunity with Ariel Sharon and his breakaway party from Likud forming Kadima which has a mixture of numerous Ministers from other parties across the political spectrum from Likud to Labor. Kadima started to fail after Ariel Sharon fell into a coma eventually passing. Rather than bite the bullet and join a party Tzipi Livni founded her very own party with some of the remnants from Kadima and a few others who believed there was opportunity as the signs were right, well, almost. Her party was called Hatnuah, meaning “The Movement.” Then she saw this party sinking fast and she made herself an opportunity to share the Prime Minister position with Labor Leader Isaac Herzog. Then problems began as it was noted she was not bringing the numbers of voters hoped and the Labor rank and file felt they were sacrificing too much to gain too little and the Zionist Union, the merger of Labor and Hatnua which the media wanted to defeat Likud that there found Zionist Union defeating Likud going into election day by a margin of 24 to 21 on average. The election result was slightly different with Likud garnering 30 seats while Zionist Union did receive their 24 but obviously insufficient to lead a coalition. This bode poorly for Livni who if she desires a future may have to simply swallow hard and join Labor and hope to rank sufficiently well enough to gain a seat in the Knesset. Tzipi Livni has been Leader of the Opposition for which she is eminently qualified as she has spent much time opposing everything while sitting in the opposition or in the government. Her other positions is a list of many positions including Minister of Regional Cooperation, Minister Without Portfolio (for which she is eminently qualified), Minister of Agriculture, Minister of Immigrant Absorption, Minister of Housing and Construction, Minister of Foreign Affairs and Minister of Justice. She must be a very capable person. The advantage of having a bicameral legislature which divides responsibilities and a Constitution which defines every branch of government with specific capabilities, responsibilities and limitations, and it is the limitations which often are the most important. The described government arrangement for Israel with a bicameral legislature with the Knesset remaining as currently configured but with the courts made at least indirectly controlled by the people rather than controlling the people and everything else it desires while all but replacing its Judges all but by themselves without any limiting factor within the control of the people. The arrangement was just an idea for the sake of offering and starting the discussion and not a serious suggestion unless the Israelis, my fellow Israelis, read and decide that the framework described has potential as an idea with which to start a national conversation. The described system also would encourage the Prime Minister to find some ministers from outside the government or assure that those chosen from within the government actually are competent and not just blindly pretending to manage something they actually do not understand. The real reason for this discussion is to limit the judges, especially the Supreme Court which even cancelled the financial agreement made on order to start production of the offshore gas fields demanding that the profits be invested in welfare and other socialist, virtually communist, programs because the people who invested in the drilling and took all the chances and took the risks should not reap benefit from their venture, not when foreign funded HGOs can petition the Supreme Court to spread the wealth making sure they get a share with which to further attempt to destroy Israel. That should have been the straw that broke the camel’s back.

 

Beyond the Cusp

 

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3 Comments »

  1. Reblogged this on Oyia Brown.

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    Comment by OyiaBrown — June 12, 2016 @ 7:28 AM | Reply

  2. any new developments in drafting a constitution?

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    Comment by hal — November 1, 2016 @ 3:37 PM | Reply

    • There are those just at the leading edge putting together supporting groups but nowhere near what it will take. The situation will soon push for a system where any constitution will need be based in Torah as well as the will and protection of all Israelis in full equality. This is the truest form combined with function. What form of governance is likely to be original in many ways. For now we pray and wait.

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      Comment by qwertster — November 1, 2016 @ 4:54 PM | Reply


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