Beyond the Cusp

November 9, 2018

The Courts Cannot be Completely Independent

 

Recently, Justice Minister Ayelet Shaked expressed her dismay and disdain for the attacks which have been leveled against her from those in the opposition. This immediately led to their slamming her conduct regarding the appointment of the next police commissioner, and her approach towards the court system. If you wish to read the bile spouted by the likes of Yair Lapid, never at a loss for self-congratulatory rhetoric; Shelly Yachimovich, still believes she should be leader of the Zionist Union and Prime Minister; and Meretz Chairman Tamar Zandberg, it’s Meretz which speaks for itself; an article can be found here. The actual dispute can be put in much clearer and more succinct language, they are upset because they are not, have not been and probably will not be in power for a while. They are especially upset with the Justice Minister because she is not appointing far leftists to the courts and does not agree with their choice for the new police chief. That is their complaint, why are you not running the government how we demand and instead following the mandate of the people who make up the coalition and in particular are from your party. (We must be honest here and report that Jewish Home is the party in which we belong.) Somehow, we are willing to bet this does not surprise many of our readers. We would like to actually discuss one point which was brought forward to refute the disgruntled leftists, where Ayelet Shaked stated, “You have never been fans of the court, you really want it to be a submissive body rather than an independent and strong one. As long as it serves you, it is the center of justice, the minute it rules in a slightly different way; you are ready to burn the place, no less.” She hit the nail on the head and pounded it home, which is probably why they attempted to savage her on social media. Well, at least they played to their ever shrinking base.

 

The left in Israel in particular and the Western World generally, believe that especially the highest court of the land should be the most powerful arm of government and the arena of all final battles. They desire that the court be able to strike down any law even Constitutional Amendments, or Basic Laws in Israel, and even beyond. Their hopes is that the court can change the intent of any law, write new laws and put them into action, change anything in the legal system and they must always be of the most liberal of justices it is possible to appoint. You are seeing examples of their acts in the United States with Justice Kavanaugh. They want the courts to supercede the law, to act above the law and be supreme with the power of a god. I am sure that if they were to get their wildest dreams, they would desire that the Supreme Court could summarily change who won the election simply because they desired the other candidate. This is another reason that Judges must always be from the left. This had been the case for years in Israel as the left ruled undaunted and unchallenged in Israel from 1948 until the election of Menachem Begin in 1977. The means by which replacement Justices were chosen for the Supreme Court were also slanted such that the court itself had a generous influence over who was chosen to such a point that opinion articles often claimed that the Chief Justice of the Supreme Court basically named his own Justices. Well, it eventually had to happen, a conservative became Chief Justice and there was a conservative Justice Minister and between them, the face of the court has been altered. The Justice Minister also was responsible for some alterations by which some of the unilateral power of the court was transferred to lower courts where proof was required to be presented rather than a complaint filed and a ruling made out of thin air. No longer can an NGO simply present a claim that Jews are residing on Arab land and have their homes destroyed without showing any proof. These were necessary changes but the latest brouhaha was over Justice Minister Shaked politely informing the Supreme Court that she did not care how many people filed complaints against the new Nationality Law, they were not to overturn this law because it was enacted as a Basic Law, the closest thing that Israel has to a Constitution. Again, the left desired a court which had unlimited and unfettered power.

 

Let us discuss what power courts should and should not have. Interpret the law is within the boundaries of a Supreme Court, but lower courts should be restricted to the application of the law as currently interpreted. Even the Supreme Court should take care when altering the meaning of a law from its original intent, this is partially why the debate with Kavanaugh over how he would interpret intent of the law. The courts cannot be above the law; no branch of the government should be above the law. Courts should never be permitted to make law out of their own desires simply because they see the need for such a law. A court with such power could completely alter a society with highly unpredictable results. There is a reason that the branch of the government which is assigned the power to make laws has the greatest numbers of people from the widest representation of the people, the people must have the greatest influence on the laws, as they must live within them. Courts should have stringent and defined limits on altering or ordering a new election such as signs of tampering with the way the ballots were cast or in the way they were counted. They should need proof beyond any doubt and this would include such tampering such as having more votes cast than there are registered voters, an area where there is a sizeable population with some definable variety in affiliations resulting in 100% of the votes falling to one candidate, verified proof that additional ballots were injected into the count or additional votes were used to replace actual votes and other provable reasons. Courts actually should have limited or no influence beyond recommendations upon request as to whom will be chosen to replace a retiring justice. Courts should, over time, change with the variations in public opinion though their lagging such changes is to be expected when their justices are chosen to serve lifetime on the bench, or until a mandatory retirement age if such is the law. Courts are not the law but the application of the law. Legislatures write the laws, Prime Minister or Presidents sign them into the books and then and only then the courts get to apply the law as written. The courts do not get the power alter the wording, alter the punctuation nor add or omit words as they believe the law should have been written.

 

Israeli Supreme Court building

Israeli Supreme Court building

 

Back we return to the situation in Israel. The left is becoming downright dejected and forlorn. Their biggest upset is with Justice Minister Ayelet Shaken as she apparently has, in their opinions, broken their favorite toy. They and the Supreme Court for seemingly nearly forever had ruled over Israel as they pleased often to the chagrin of the elected officials, but because of concessions to seemingly moderate parties in the coalition being granted Justice Minister, the courts, especially the Supreme Court, ruled supreme. Along came Ms. Shaked and things began to slowly change. The tide of change started to escalate, but was still quite leisurely. Things really did not appear to be all that different and there had been no explosive volcanic upheavals but suddenly they realized that there had been a seismic shift and they had apparently been asleep. It was probably easy for them to sleep through the changes as things had been going their way pretty much from 1948, so after a while it appeared that things would never change. Things have this way of sneaking up on people and once they notice, it is often far too late to do much about the changes. This is where the frustration and anger originates and the left is furious that Ms. Shaked broke their Supreme Court Muppet Puppets. Their Supreme Court Muppet Puppets were no longer a complete set and the new replacements were not going to just rubber stamp the leftist agenda, and this must not be tolerated. The fact that they are this upset is close to real joy over here but we refuse to get complacent because, as Thomas Jefferson once wrote, “Eternal vigilance is the price of liberty.” Of course, he was also purported to have written, “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure.” While we have little problem with the first quote, the second is a bit extreme, but Barry Goldwater had something to say about that as well, stating, “Extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.” Perhaps that is sufficient wisdom for one writing.

 

Beyond the Cusp

 

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