JIWON:How many famed jurists appear in these articles? Who will answer my Human Rights, which Beinisch family destroyed for the past ten years? To be honest, I am NOT interested in JM Daniel Friedmann’s legal reform. I am ONLY interested in my LIFE. But then, I find nothing wrong in JM Friedmann’s opinion while collecting all the possible articles. What’s wrong with me? Are there more? Please let me know. I still feel that I should search more about Dorit Beinisch toward/during/after Rabin’s assassination.
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PART of In sum, I will travel ALL over the world and plead Palestinian Right to Targeted Killing of DORIT BEINISCH. (Oct 2-17, 2008)
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Article No. 81 in Talkbacks: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
Mazuz warns against amending Citizenship Law
June 30, 2008 / By Tomer Zarchin
(…) Friedmann’s present proposal came after the Labor Party rejected a broader draft amendment, removing barring judicial review of all laws relating to citizenship.
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Article No. 78 in Talkbacks: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
Legal Affairs: Bench pressure Jun 26, 2008 / By Dan Izenberg
The petition filed this week by Aviva and Noam Schalit has triggered another round of debate over the prerogatives of the High Court of Justice. It calls on the security cabinet to reconsider the decision to open the Israeli-Gaza border crossings without the release of their son, Gilad.
Which raises the question: How does the Supreme Court even entertain the possibility of rejecting a government decision on a matter so clearly related to questions of war and peace, and the security of tens of thousands of citizens living adjacent to the Gaza Strip – issues that are clearly the responsibility of the government? And why didn’t it throw out the petition without considering it?
This question echoes the accusations of “over-activism” that Justice Minister Daniel Friedmann has been hurling at the court over the past year-and-a-half. During his time in office, Friedmann has raised the possibility of prohibiting the court, through legislation, from hearing petitions related to security matters and those affecting the government budget. He also supported a private Knesset member’s bill to bar the court from hearing petitions related to citizenship matters.
So far, none of these initiatives has come to fruition. (…)
JIWON:For the entire text, please click Selected Articles 5: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
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Article No. 72 in Talkbacks: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
Eitan-bill: Friedmann fails to garner support for limit to High Court (By Labor)
June 17, 2008 / By Haaretz, Tomer Zarchin
The ministerial committee for legislation yesterday rejected a private member’s bill aimed at limiting the right of the High Court of Justice to intervene in laws concerning entry into Israel and citizenship. The only member of the committee to vote in favor of the bill was the panel’s chairman, Justice Minister Daniel Friedmann.
(…) According to Eitan’s proposal, which would amend the Basic Law on Human Dignity and Freedom, courts would not be able to overturn laws that restrict entry into Israel…
(…) the ministerial committee began discussing it after Friedmann proposed a more sweeping version of the same bill about a year ago. The Labor Party had already announced that it opposes the move, and its agreement is necessary to amend a Basic Law. (…)
JIWON:For the entire text, please click Selected Articles 5: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
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Terrified of Judicial Reform
May 2, 2008 / By Jerusalem Post, Jonathan Rosenblum
Boxing may be dead but those who still savor the sight of heavyweights throwing roundhouse punches at a fast and furious pace could do worse than the current donnybroook between Justice Minister Daniel Friedmann and former Supreme Court President Aharon Barak.
The verbal fisticuffs between the two ?like those between Barak and Richard Posner, one of America’s leading jurists — have performed a valuable public service by bringing to the fore a long postponed debate about the nature of the Israeli legal system. No longer can it be claimed that criticism of the Supreme Court is confined to proto-fascist, right-wing thugs. Friedmann is both an Israel Prize laureate in law and a man of the Left.
Just how long this debate has been suppressed can be discerned from the hysteria that has greeted Friedmann’s proposals for reform of the judicial system. In a pre-Pesach interview with Ha’aretz’s Ari Shavit, Barak predicted Friedmann would turn Israel into a “Third World country.” At least he did not threaten to cut off Friedmann’s hand, as did his former colleague on the Court Mishael Cheshin.
In the Ha’aretz interview, Barak accused Friedmann of seeking to dominate the entire legal system. But that is precisely what Barak himself did as Court President. He enforced uniformity of ideology and judicial philosophy throughout the judicial system, and now he seeks to bequeath to his prot??Dorit Beinisch the same power.
Barak expanded the Court’s power exponentially by abrogating traditional legal doctrines of standing and justiciability to a degree unparalleled in the world. He admits as much in his interview with Shavit. And he unilaterally declared a “constitutional revolution” on the flimsy evidence of two Basic Laws passed in the middle of the night, after scant debate, and with less than a quarter of the members of Knesset voting. Ours is thus the first constitution discovered by a judge rather than emanating from solemn deliberation.
Barak employed his dominance of the judicial selection committee to prevent anyone who did not share his judicial philosophy from ascending to the Supreme Court. He fought the appointment of Ruth Gavison, an internationally renowned legal scholar, solely because she, like Friedmann and Posner, does not share his judicial philosophy.
Judges in the lower courts knew that their advancement depended on the favor of Aharon Barak. So did law professors who aspired to careers on the bench. And finally, so did the attorneys-general and state prosecutors who hoped to follow the traditional path to the Court. They faithfully snuffed out any who dared to challenge the Court’s power. Justice Minister Yaakov Neeman, Reuven Rivlin when his appointment as Justice Minister was being mooted, and Bar Association president Dror Hoter-Yishai were all neutered on the basis of trumped-up indictments, quickly dismissed by the courts, or criminal files subsequently closed.
FRIEDMANN’S PROPOSALS do nothing to strengthen his power. Rather they are designed to reduce the power of the Court President to enforce uniformity. Extending the term of lower court presidents and deputy presidents from four to seven years, while doing away with reappointments, would increase the independence of the court presidents and remove their incentive to keep one eye perpetually cocked on the Court President. Taking away the selection of lower court presidents and deputies from the Court President and giving it to a committee of judges and ex-judges, would lessen the power of the Court President to enforce uniformity of thought over the entire judicial system.
Doing away with the practice of “temporary” appointments of lower court judges to the Supreme Court ?a practice designed to allow the Supreme Court justices to ensure that would be colleagues can be counted upon to toe the line ?would again open up the judicial system to more internal debate and fresh thought.
The Friedmann proposal that terrifies Barak most is that to end the chokehold of the sitting justices over appointments to the Court itself ?a chokehold that Barak weakly justifies as necessary to preserve collegiality. Yet Barak admits that “most constitutional courts in the world are chosen by political bodies.” And no democracy invests sitting justices with the power over the judicial selection process they exercise in Israel.
To justify the Israeli anomaly, Barak offers only the self-interested claim that the process has produced excellent justices. In addition, he argues there is a distinction between Israel and other democracies. They are civilized, whereas our politicians are a group of dangerous troglodytes ever eager to trample individual liberties ?for instance, the right to marry citizens of an enemy entity and bring them to live in Israel.
Defenders of our current judicial system, Barak chief among them, claim that it is necessary to protect minority rights. But it turns out that the minority they are most eager to protect is the Court itself, and the “right” at stake is that of the Court to determine societal norms to an extent found nowhere else in the world.
When judges import new values into the system or effectively rewrite statutes according to their own lights, writes Barak, they are merely giving effect to the people’s most cherished norms and standards. But if all he wanted to do was ensure that legislators legislate and executives execute in accord with fundamental societal values, he should be the foremost proponent of a constitutional court based on European models. In fact, he is the staunchest opponent.
The reason is that the values Barak and his acolytes want to enforce are not those of the Israeli people but their own. Last week’s bizarre Supreme Court decision granting citizenship to Messianic Jews whose fathers are Jewish is a glaring example. The Court not only overturned its own precedent in the Brother Daniel case, but the Knesset’s codification of that decision in Section 4A(a) of the Law of Return, that one who chooses another religion is not a Jew for purposes of the Law of Return.
Our Sages tell us kol haposel b’mumo posel ?one sees in another his own faults. Barak’s accusation that Friedmann seeks to exercise total authority over the judicial system provides a powerful example of that ancient truth.
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Article No. 62 in Talkbacks: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
Friedmann: Keep Supreme Court out of immigration, citizenship laws May 09, 2008 / By Tomer Zarchin
Justice Minister Daniel Friedmann has proposed an amendment to the Basic Law on Human Dignity and Freedom that would exempt laws relating to immigration and citizenship from judicial review.
JIWON:For the entire text, please click Selected Articles 5: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
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When the High Court decides not to decide
Last update – 10:11 28/03/2008 / By Haaretz, Tomer Zarchin
Tags: health basket, Knesset
On March 28, 2005, a day before the Knesset vote on the budget, attorney Orna Linn petitioned the High Court of Justice on behalf of Gila Luzon and Adolf Edri – both of whom suffered from colon cancer – and the Last Line for Cancer Patients association, to include the medication Avastin in the health basket.
The medication, which had been only partially included in the basket that year, left Luzon and Edri uncovered. However, the legal process in the High Court was drawn out. Two hearings were held on the case, in April and August 2005.
But neither Edri nor Luzon was able to last as long as the timetable of the court. Edri died in October 2005 and Luzon in June 2006. The petition, which is still gathering dust in the archives of the Supreme Court, will not be of assistance to them.
This is not the first case in which petitions to the High Court are heard so slowly. Data that Haaretz has received and is being made public here for the first time reveal that, as of the middle of March this year, there were 54 cases that had been awaiting a ruling for more than half a year.
The oldest case was opened in 2000. It must be stressed that additional petitions that were submitted even earlier are waiting on the court’s shelves, but these are petitions in which the proceedings are dragging on and the time has not yet come for writing a ruling.
Supreme Court President Dorit Beinisch leads the bench in 24 out of the 54 cases that are being postponed while Justice Ayala Procaccia leads the bench or is part of the extended bench, in 22 of the postponed cases.
Beinisch pushes sanctions
The fact that Beinisch heads the bench in cases where the rulings have been postponed for more than six months is most surprising as she has declared that one of her main aims is to cut away the backlog in handing down rulings by judges in the lower courts. Beinisch thus submits complaints against those judges who postpone handing down rulings to the courts’ ombudsman while she herself postpones writing rulings.
The major topics in cases in which the rulings are being postponed include the army and security, citizenship, conversion, health and the rights of the Palestinians.
Attorney Gilad Barnea, who serves as adviser to the Yedid association for pro bono legal aid, in June 2000 submitted a petition to the High Court on behalf of the late Arnan Yekutieli, at that time a Jerusalem city councillor, and additional petitioners including Jenny Beruchi whose guaranteed income was taken away from her because of academic studies.
As part of the petition, the petitioners requested that the paragraph of the Budget Law that ensured the minimum income of yeshiva students who study in a kolel (yeshiva for married students) be revoked.
The petitioners claimed it was discriminatory since the law regarding guaranteed income ruled out the possibility of granting such insurance to persons who decided to study at a university.
Almost eight years have elapsed since the petitions were submitted; there were five hearings, the last in March 2007 with an expanded bench of judges headed by the president.
Yekutieli has meanwhile died and as for Beruchi, she is meanwhile working and completing her master’s degree – the petition is superfluous now.
Barnea explains that the court’s delays in handing down rulings is due to the huge backlog of cases and the difficulty of making decisions on controversial subjects that may yield friction between the court, the government or the Knesset.
“In these cases,” he says, “the High Court of Justice delays its ruling, sometimes even for years, while its job is, by definition, to make a decision, and to make that decision in time. A postponement of years in such rulings means that the decision is taken separately from the matter at hand and that it it is sometimes devoid of content and sometimes becomes superfluous.”
A fear of activism
Attorney Boaz Arad, who is representing the Ometz movement in the High Court, says that some of the delays in rulings stem from the fear on the part of the court of becoming deeply involved in issues that are controversial out of the hope the problem will solve itself and the fear that the justices will be accused of judicial activism.
“There is no doubt that the High Court of Justice is loathe to intervene in severe differences of opinion over religious-secular or Jewish-Arab relations, especially at times when the court is the subject of criticism from politicians who attempt to restrain it,” he says.
When it comes to matters of security, the High Court is likewise in no hurry to hand down rulings. Among the petitions that are waiting in line is one from Physicians for Human Rights and other rights organizations to cancel the instruction given to the Israel Defense Forces to shorten the safety margin when firing shells at the Gaza Strip, from 300 meters to 100 meters from the civilian population.
The petition was submitted in April 2006. A month later, an urgent hearing was fixed with then court president Aharon Barak heading the bench. In July 2007, a hearing was held with the current president, Beinisch, heading the bench and since then there has been no decision.
Attorney Michael Sfarad who represents the petitioners, says: “The sole claim by the state in the petition is ‘non justiciability.’ The court is in no hurry to make a decision but it is the petitioners’ right to receive a ruling, and the court’s obligation to hand it down. Postponing the ruling in a case like this is an irreversible blow to people. We provided the court with lists of names of dozens of people who were killed after the petition was presented to the High Court of Justice as a result of this kind of shelling on the part of the IDF, but there is still no ruling.”
The delays in handing down rulings can cost a lot of money. That is what happened in the case of the Museum of Tolerance, which is slated to be built in the center of Jerusalem. This educational project, which is headed by the Simon Wiesenthal Center in Los Angeles, is intended to encourage the involvement of individuals in society and its cost is estimated at more than $200 million. In January 2006, the Al-Aksa Company for the Development of the Wakf (Muslim religious trust) petitioned the High Court with the claim that part of the area of the museum harmed an ancient Muslim cemetery. At a later stage, the petitioner claimed that a large part of the entire area is Muslim holy ground.
Following an attempt to prevent the digging through an Islamic religious court, a hearing was fixed in which Barak was due to head the bench. The sides were sent to arbitration and meanwhile an order was issued that froze the work at the site. When the arbitration failed, the sides appealed to the High Court and the last hearing was held in April 2007. Since then, the sides have been waiting for a ruling. According to an expert who estimates the construction cost of large projects, whose opinion the Museum of Tolerance submitted to the court, every month in which the project is held up costs the backers more than $5 million.
Since they have no choice, the attorneys who suffer from the delays in the handing down of rulings find creative ways to avoid the High Court. Barnea, who petitioned the court in 2000 on behalf of Yekutieli and others over guaranteed income, has learned from his experience.
He says: “I learned with time that it is preferable to send the case to the Labor Court, for example, since there it is possible to get assistance more quickly, or to the Magistrate’s Courts or the District Courts since the judges in these courts are sometimes less scared of these things and hand down rulings that are ground-breaking.”
Barnea believes that if he petitions the High Court over a case like Beruchi’s, the case will take at least four years. It is clear he will not receive an interim injunction that will return the income payment to the petitioner until there is a ruling. If the state knows there is a petition before the High Court, it will not change its decision until the case has been heard.
“So how can I advise people to petition the High Court?” he asks. Attorney Irit Rosenblum, the head of the New Family organization, which promotes the recognition non nuclear families, says that because of the realization that the High Court cannot provide a swift solution to petitions, she tries to extend to the utmost the limit of authority of the Family Affairs Court.
“In an instance like a biological will, which is a legal document where a person gives practical instructions about what will happen with his sperm after his death, we have managed to reach a breakthrough in the family affairs courts rather than the High Court of Justice. It is true the ruling is not a binding rule, and it is clear that if a ruling had been accepted by the High Court about a biological will, this would pave the path in this respect. But I believe, since there is no choice, that one must try to stretch the authority of the Family Affairs Courts. People are looking for swift and practical solutions. To have a case drag on for years in the High Court of justice is terribly frustrating,” Rosenblum says.
The person who believes there is no alternative to the High Court of Justice, at least in some of the cases like that of the health basket, is attorney Orna Linn. She represented the cancer victims Luzon and Edri, and she now plans to submit another petition about the government’s policy on health basket medications.
“I do not believe that in petitions relating to the health basket, certainly not those that are cases of principle, it is worthwhile trying to extend the authority of the Labor Court. Sometimes the court’s decision is good for the petitioner, and sometimes it is not, and sometimes previous rulings of the Labor Court restrict them [the judges] and make it difficult for them to take decisions with regard to individual cases,” she says.
Prof. Yoram Shahar of the Interdisciplinary Center at Herzliya, has for the past three decades been studying the work of the Supreme Court. “Usually,” he says, “there is a good reason for the delay in handing down rulings by the court. They have real inner struggles. If the petitioners ask for a quick answer, they are likely to get a negative answer.
“The expectation that the court will solve all the problems is too great, and that is why the petitioners are often disappointed. From my examination of the Supreme Court’s work I can say that when the justices are able to give a quick response, they do so. Quite a few hearings in the High Court end after one session with a remark from the justices to the prosecution or even with the raising of an eyebrow by a justice, but not all the issues are of this nature.”
Shahar says about the initiative of Rosenblum and Barnea, “Thank God that a process is starting whereby people think that the Supreme Court is not the only place to which to take everything. The process of running with every subject to the High Court of Justice and expecting salvation, creates frustration. Pressures must be put on lower instances to provide the answers.”
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Friedmann: High Court should address Jewish citizenship only
Last update – 08:23 28/10/2007 / By Haaretz, Shahar Ilan, Haaretz Correspondent
The High Court of Justice should not review petitions by non-Jews on citizenship issues, Justice Minister Daniel Friedmann recently told the Knesset Constitution, Law and Justice Committee in a request to limit such petitions to the jurisdiction of administrative courts.
The committee is expected to decide on the issue on Sunday.
If the committee accepts Friedmann’s proposal, the High Court of Justice will only rule on immigration matters that pertain to Jews, relatives of Jewish immigrants and collaborators who worked with security services. Friedmann submitted the proposal after consulting Supreme Court President Dorit Beinisch.
Additionally, if approved, the proposal would mean that the administrative court system will rule on family-unification issues as a first legal instance. Currently, the administrative court system is operating under Israel’s district courts.
The administrative courts review petitions for the High Court of Justice, which is headed by Beinisch. They were established to free up the High Court of Justice from the need to spend resources on sorting out which petitions merited discussion.
At present, the High Court of Justice rules on citizenship matters for Jews and non-Jews alike. The administrative courts, for their part, review only matters that concern residency status.
These separate fields of responsibility mean that the High Court of Justice is the body responsible for reviewing family-unification petitions by Arab Israelis, whereas such petitions by Arabs from East Jerusalem – who are not citizens but only residents – are reviewed by the administrative court within the District Court of Jerusalem.
The administrative courts and the High Court of Justice review some 4,000 petitions that concern civilian administration issues every year.
Friedmann’s proposal aims to establish a procedure that would expedite legal treatment of these requests.
Legal sources postulated that the proposal to make the administrative courts responsible for reviewing non-Jewish citizenship requests omitted collaborators because of the potential sensitivity of the cases.
Friedmann, the sources say, therefore opted to restrict discussion on these matters to Israel’s highest legal instance.
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Article No. 0 in Talkbacks: Beinisch Politics has nothing to do with LAW
Secret Society
December 21, 2006 / By Yuval Yoaz
(…) Okon, a close friend of Nili Cohen and her former research assistant, was sent by Barak to find out whether Beinisch would agree to a double appointment to the Supreme Court: Nili Cohen together with Edna Arbel, Beinisch’s close friend.
“He spoke to me aggressively and with chutzpah,” said Beinisch. “He told me that I was not yet the president, and it was not certain that I would be president, and what was I thinking when I opposed the viewpoint of the president like that.” Okon served as legal editor for Levitsky’s first book, and in effect as a private law tutor on behalf of Barak. Now, an interviewee like all the others, he has a different version of what took place at that meeting: “I came in and told her that I understood that she had serious complaints against Nili, personal complaints. Beinisch stopped me immediately and said that her opposition was not personal, and that she was opposed to the appointment because she didn’t think that someone from the academic world should be appointed now, and that was the end of the conversation.” Barak, who heard from Okon about the outcome of the conversation, understood that the story was over.
Did Barak understand at that point that his status had declined, that his exclusive hold on the center of power in the Supreme Court had ended?
Levitsky: “I can’t answer that in his place, but I would guess that he understood. At the time he was very hurt. Anyone who met him then could see that he had changed completely. He wasn’t the same person, he had lost some of his vitality.”
Consolidating a majority
The book shatters two common assumptions about the way Supreme Court justices write their decisions. One is that every justice is entirely independent in this activity – alone with the paper, with the facts in the file and their legal analysis. There is no authority above him except that of the law. The second assumption is that the reason why so much time passes between discussion of the fundamental petitions and the decision on them is the tremendous workload borne by the justices.
Levitsky snickers when she hears these things. Her book is full of examples from behind the scenes that prove that neither assumption is true. Instead, the justices consult with one another, persuade one another, make efforts to convince and even negotiate with one another about the wording of the decision so that they will be able to say, “I agree.”
On the other hand, important decisions are sometimes delayed for years on end so that one justice or another will succeed in obtaining a majority among the justices on the panel. And if efforts to convince don’t help, changes in the composition of the panel do.
“The justices pass along a large number of drafts to one another,” says Levitsky. “One tells the other, I can agree with you on condition that you omit this and that sentence. There are entire negotiations between them. In order to consolidate a majority on a certain issue, sometimes justices have to relinquish one sentence or another. They sit at meetings, speak among themselves and deliberate. Sometimes they also consider how the ruling will affect the court.”
The case of the Citizenship Law amendment that prevents reunification of families of Israeli Arab citizens married to Palestinians proves almost everything that Levitsky wants to prove in this connection. The petition was discussed by a panel of 13 justices, including Justice Salim Joubran, who at the time still had a temporary appointment in the Supreme Court. During the meeting of the justices, Barak, who supported overturning the amendment, was under the impression that he had succeeded in garnering a majority of seven justices, as opposed to six justices headed by Cheshin who wanted to leave the amendment in place. He wrote his decision, but when his attempts to bring Eliahu Mazza, Asher Grunis or Miriam Naor over to his side failed, he decided to shelve his ruling. Levitsky says that he was simply afraid to overturn the amendment to the Citizenship Law on the basis of a majority of seven to six, with an Arab judge as the deciding factor.
The shelving of the decision written by Barak, when it had a majority in the Supreme Court, is a sensational revelation that is being published for the first time in the book. A year and a half after the petitions were submitted to the High Court of Justice against the Citizenship Law, when Justices Theodor Or and Dalia Dorner had already retired, Barak appointed Esther Hayut and Yehonatan Adiel to the panel. But since he had not yet succeeded in changing the balance of power within the panel, he decided, with Mazza’s encouragement, to publish an interim decision expressing dissatisfaction with the amendment; but it has no real binding validity. All the justices on the panel agreed to sign this decision. “Our hope was that the government would understand and do something,” said Mazza. But his hope was dashed.
Prior to Cheshin’s resignation from the court in May 2006, Barak decided to end the affair and publish the decision. Now only 11 justices remained on the panel, and Barak discovered to his chagrin that even his fragile majority had disappeared. Adiel decided to adopt Cheshin’s position. Barak, in an attempt to preserve the majority, agreed to give the government eight more months to change the law. But three days before the publication of the decision, Eliezer Rivlin, who considers himself the successor to Barak’s liberalism in the defense of human rights, informed him that he had changed his mind and sided with Cheshin.
Barak had a plan: He wrote a moderate decision, in order to convince the justices to adopt his position. In case he discovered that he had been unsuccessful in obtaining a majority, he planned to write a much more sharply worded minority opinion against the amendment. But since the balance of powers was discovered at the very last moment, he didn’t have any time left to do so.
Even Cheshin once shelved a decision he had written, under the influence of the internal politics of the Supreme Court. Up until now he has refused to reveal the subject of that shelved decision. Levitsky reveals the secret: It dealt with the well-known “Ka’adan-Katzir affair.” (An Israeli Arab family tried to buy a house in a new community, Katzir, established by the state and the Jewish Agency on state-owned land. The Katzir housing committee refused to allow the family to move in on the grounds that they were not Jewish. The family petitioned the Supreme Court, claiming that this constituted racial discrimination, and challenging the fact that citizens could be excluded from public land through the Jewish Agency.) Barak tried, as usual, to consolidate a solid majority for his ruling, when it was already clear that its influence would be broad and precedent-setting. However, Cheshin surprised him when he declared that he planned so write his own decision.
“When Barak received a draft copy of Cheshin’s decision,” writes Levitsky, “he was upset. Barak could not accept the words. In a very exceptional step, he entered Cheshin’s room and closed the door behind him. ‘You cannot publish such a thing,’ said Barak, ‘it will shame you, and not only you, it will shame this entire court. These words will be published all over the world and will be condemned.’”
Barak said it was not easy to convince Cheshin to shelve the decision he had written. As a last resort, he invoked the memory of Cheshin’s late father, Supreme Court justice Zalman Cheshin: “Misha, if you yourself don’t care, think about your father. What would your father say about the things you’ve written here?” Cheshin finally agreed to shelve the decision, and joined Barak’s opinion. (…)
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Restore the court to its proper place
Jul 5, 2006 23:15 | Updated Jul 7, 2006 14:46 / By Jerusalem Post, EVELYN GORDON
Justice Minister Haim Ramon’s proposed Basic Law: Legislation has generated a storm in legal and political circles. Yet the critics have ignored the proposal’s most outrageous element: the Supreme Court’s active involvement in its drafting, in gross violation of the principle of a separation of powers among the legislative, executive and judicial branches.
The bill itself is not without positive elements. First, it would finally set rules for how Basic Laws, which the Supreme Court regards as constitutional legislation, must be passed. This is vital to prevent a recurrence of the farce generated by the last two Basic Laws, which passed by votes of 32-21 and 23-0, or about one-quarter and one-sixth of the 120-member Knesset – thereby making Israel the only democracy in history whose “constitution” was adopted by minority vote. That the Supreme Court cites these laws, passed by considerably less than half the Knesset, as justification for overturning legislation passed by far larger majorities is obviously problematic from a constitutional standpoint.
Second, the bill deserves credit for acknowledging that since a constitution is supposed to reflect a broad consensus on the rules of the game, constitutional legislation ought to require more than a one-vote majority to pass. Unfortunately, the threshold it sets – 70 MKs, or 58 percent of the Knesset – is still too low, since many governing coalitions are that size. The bill would thus enable constitutional legislation to be enacted without any support from the opposition, thereby sabotaging the main purpose of a constitution: genuine societal agreement on basic ground rules.
Finally, the bill would for the first time introduce a legislative override of the Supreme Court. Certain other democracies, such as Britain and Canada, also enable such overrides, but in Israel, they are absolutely essential, since Israel lacks the mechanism used by other Western democracies to maintain the balance of power between the court and the other branches of government: the appointment of Supreme Court justices by the elected branches.
Unfortunately, the bill’s proposed override is too limited as long as the current judicial appointments system, which essentially allows justices to select their own successors, remains unchanged: It would enable the Knesset to reinstate a law that the court declared unconstitutional, but only for five years, after which the law could not be reenacted.
THE STORM over the bill, however, is due mainly to Ramon’s plan to pass it separately rather than as part of an overall constitutional package. That is indeed a valid concern. A constitution usually contains compromises aimed at satisfying different sectors of the population, and it is these compromises that enable it to attract widespread support. But such compromises are almost impossible to craft when the constitution is passed piecemeal, without serious negotiations over the total package, and that will ultimately undermine support for the finished product.
Nevertheless, the judiciary’s involvement in preparing the bill ought to be of equal concern. Yet this problem has been almost completely overlooked.
Ramon not only met with Supreme Court President Aharon Barak about the bill; he even announced that its content had been coordinated with Barak. Senior legal officials added that Barak played an active role in drafting the bill. The Justice Ministry, which is finalizing the actual wording, formally asked the Supreme Court for feedback on its draft. And Judge Boaz Okon, the director of the Courts Administration, publicly announced his support for the bill, as if the judiciary were just another lobby trying to influence the Knesset.
Allowing the judiciary an active role in drafting legislation – a job that all other democracies entrust exclusively to the elected branches – not only outrages the separation of powers principle; it gives the court excessive input into the content of our constitution. Normally, the legislature and executive write laws and the courts interpret them, thereby enabling each branch to contribute to the law’s ultimate shape.
But while Ramon’s bill would duly anoint the Supreme Court as the constitution’s authorized interpreter, with explicit power to declare ordinary Knesset legislation unconstitutional, the court is also its co-author. Thus the other branches of government have been rendered superfluous.
AT AN academic conference last month, former Supreme Court justice Yitzchak Zamir was distraught over a bill now before the Knesset that would authorize the Supreme Court president to draft binding ethical rules for judges. Zamir argued that out of respect for the separation of powers, the Knesset should be denied any say over judicial conduct – even to the minimal extent of authorizing the court president to draft binding rules. “Something has changed in the perception of Israeli society, certainly in that of the Knesset, regarding the concept of separation of powers, and something has happened to the respect that Israeli society and the Knesset have for judges,” he mourned.
Something has indeed happened to the separation of powers principle. But the main culprit in this principle’s radical erosion is neither the Knesset nor Israeli society, but the Supreme Court itself.
It is the court that has usurped the executive’s power by overturning numerous government policies merely because the justices deemed them “unreasonable” – even though setting policy is the executive’s main task, and the question of whether or not such policies are reasonable is precisely what voters are asked to decide in every election.
It is also the court that has usurped the legislature’s power, both by overturning Knesset legislation without explicit authorization, based solely on two Basic Laws passed by a minority of the legislature, and by interpreting other laws in ways diametrically opposed to the legislators’ intent, as clearly indicated during the drafting process.
And now, the court is taking its usurpation of the elected branches’ prerogatives to new heights by encroaching on the job of drafting the country’s constitution.
One can decry Zamir’s crocodile tears over the eroding separation of powers, but one cannot reasonably expect an obviously power-hungry Supreme Court to restrict itself.
Only the elected branches of government can restore the court to its proper place. And a good place to start would be by removing the court from the constitutional drafting process.
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Justice Minister Ramon may alter Supreme Court seniority system
Last update – 01:14 25/05/2006 / By Haaretz, Yuval Yoaz
Justice Minister Haim Ramon is considering abolishing the seniority system by which Supreme Court presidents have always been appointed. Doing so might prevent the appointment of Justice Dorit Beinisch as the president when Aharon Barak retires in four months.
“Everything is open,” Ramon said. “I’m not threatening anyone, heaven forbid, I have great esteem for Justice Dorit Beinisch. She is truly one of the leadings jurists in Israel, with very broad experience. I am holding consultations and examining all the issues.”
Speaking Tuesday at the Bar Association conference in Eilat, Ramon said: “I am not chained to anything, no practices or customs. I’m not saying I won’t respect customs, but I will try to examine the entire subject – from the Supreme Court on down.”
Ramon was referring to the Supreme Court practice whereby when a president retires, the Judicial Appointments Committee selects as replacement the most senior justice. To date, no justice other than the most veteran has ever vied for the post, so the committee has never faced such a dilemma.
Senior judicial officials said that if another Supreme Court justice challenges Beinisch for the post, the precedent would send shock waves through the entire judicial system. Judicial sources said Ramon might also try promoting candidates for the Supreme Court who are not favored by the sitting justices, like his predecessor Tzipi Livni – who sought to appoint Prof. Ruth Gavison despite the objections of Aharon Barak.
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Welcome to Barak’s World
May 25, 2006 2:08 | Updated May 25, 2006 3:39 / By Jerusalem Post, EVELYN GORDON
An e-mail written by Supreme Court President Aharon Barak made justifiable waves last week – but for the wrong reason.
What grabbed headlines was Barak’s citation of Justice Minister Haim Ramon’s prediction that were the Knesset to extend the current Citizenship Law unchanged, the High Court of Justice would overturn it. That, however, was hardly news to anyone who read last week’s 6-5 ruling upholding the law, since one of the majority justices stated explicitly that he considered the law unconstitutional, and refrained from striking it down only because it expires in two months anyway.
What was truly noteworthy about the e-mail was the insight it offered into how Barak makes decisions: not by interpreting the law, but by creating new laws in the Knesset’s stead.
The e-mail, to a friend at Yale University, analyzed the court’s decision on the Citizenship Law, which bars Palestinians married to Israelis from moving to Israel if they are below a certain age, on the grounds that the Palestinian terror war against Israel makes them security risks. In the e-mail, Barak described his own ruling on the case as follows, according to a Hebrew translation published by Haaretz: “In my ruling, I determined that the right to family life is a constitutional right of the Israeli spouse and his children. This right includes not just the right to marry, but also the right to live in Israel. I also determined that the law discriminates against Arabs, since all the Israelis who seek family unification with West Bank residents are Arabs. Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.”
IN OTHER words, instead of examining Israel’s “bill of rights” – the Basic Law: Human Dignity and Liberty – and trying to determine what rights the Knesset intended it to confer, Barak decided what rights he thought it ought to confer, and then searched for something in the text vague enough to accommodate his desires.
Specifically, he first decided that Israelis ought to have the right to live with their spouses in Israel. Then, since no actual article of the Basic Law confers this right, he decided to substitute himself for the Knesset and add it to the law, by declaring it “part of the right to human dignity.” But Barak did not even stop at creating rights that the Knesset never envisioned. Instead, he created rights that it had explicitly rejected.
Even before the Citizenship Law was amended to restrict Palestinian immigration through marriage, Israeli marriage law was extremely restrictive. Under it, marriage is controlled by each faith’s religious establishment. Thus interfaith marriage, for instance, is impossible, because no legal authority is competent to perform it. Jews who want to marry Christians must do so overseas.
The Knesset discussed this issue while deliberating on the Basic Law, but in order to secure broad religious support for the law, it decided to leave the religious monopoly on marriage intact. In other words, the legislature deliberately decided that the law would not give Israelis the right to marry whomever they pleased. But Barak disagreed with this decision – and since he believes that the court has a better right than our elected representatives to determine the contents of Israel’s “constitution,” he decided to legislate a “right to marry” from the bench.
THE SAME holds for equality: The Knesset discussed this issue and deliberately decided to leave equality off the law’s list of rights. But Barak disagreed with this decision, so he legislated this right from the bench.
Moreover, he gave this “right” a far more expansive definition than the norm in other Western democracies. According to Barak, Israel cannot bar entry to enemy nationals during wartime – something all Western democracies do – because only one particular segment of the population, Israeli Arabs, happens to want to marry these enemy nationals. In other words, even though the law’s intent is not discriminatory – it is aimed not at Israeli Arabs, but at enemy nationals – it is unconstitutional because it affects one segment of the population more than others.
Yet by that standard, numerous laws, both in Israel and in other democracies, would be unconstitutional. Israel’s ban on polygamy, for instance, would be unconstitutional, because only the Beduin actually practice polygamy. So would Denmark’s law barring teenage marriages with noncitizens, since Muslim immigrants are the only Danes who typically marry teenagers from abroad. And so forth.
But for all Barak’s outrageous usurpation of the Knesset’s prerogatives, the fault, as MK Michael Eitan (Likud) aptly noted last week, ultimately lies with the Knesset.
First, had the Knesset not legislated such impossibly vague laws – what, for instance, does the right to “dignity” actually mean? – the justices would find it harder to “interpret” these laws to mean whatever they please. And second, the Knesset has almost never responded to such judicial power grabs by passing amendments to reassert its own interpretation of the Basic Law. That is what Eitan is now proposing in response to the Citizenship Law ruling: amending the Basic Law to state explicitly that it cannot be used to overturn legislation on such fundamental policy issues as immigration, citizenship and personal status.
Clearly, this is not an ideal solution, since “constitutional” legislation should not be riddled with particularistic exceptions. Yet given that the Knesset has allowed the court to legislate from the bench without hindrance for years, this may be necessary to restore the proper balance between the two branches of government. Only by swiftly countering judicial overreach through legislation can the Knesset send the message that it will no longer tolerate such power grabs.
As Eitan correctly said, the court’s “cynical, exaggerated and baseless use” of the Basic Law in this case is ultimately “the rotten fruit of a weak Knesset that is not maintaining its basic powers.”
One can only hope that he will succeed in rousing his colleagues to finally take a stand against such judicial usurpation.
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Yale Daily News: E-mail from Israeli Law School lecturer fuels debate
Published Sunday, May 28, 2006 / By Yale Daily News, Staff Reporter
When Israeli Supreme Court President Aharon Barak, a lecturer at Yale Law School, allegedly sent an e-mail to a “dear friend” at the University with his explanation of one of the Israeli high court’s most bitterly contested constitutional decisions to date, he did not expect the letter and the Law School to land on the front pages of Israeli newspapers.
But after a mysterious leak to the media last week, both did.
The e-mail to a law professor fueled an already-heated regional debate on the limits of the Israeli judiciary, the proper role of Israeli judges outside of the courtroom, and whether or not a law upheld by Barak’s court earlier this month that denies citizenship to Palestinians married to Israeli Arabs violates principles of basic human dignity and equality.
The Israeli daily Haaretz, which reprinted the e-mail, reported that anonymous “legal circles” in the Middle East were outraged over Barak’s willingness to express his personal feelings in the casual format of e-mail on a case of such national significance. Furthermore, since Barak wrote in the e-mail that the law would be likely invalidated by the high court if it is passed again after its upcoming self-expiration, some outraged lawmakers in the Knesset threatened to both pass the law again and legislate to limit the authority of the court.
Although the individual at the Law School who leaked the letter to the press remains unknown, some professors have said that Barak has regularly — and always ethically — corresponded via e-mail with fellow legal minds at Yale, where he has taught seminars and visited frequently in the past.
Law professor Robert Burt, who serves on the board of directors at the Joseph Slifka Center for Jewish Life at Yale, said he received the latest of many e-mails from Barak last week but inadvertently deleted it before the story erupted in the Israeli press.
“This is not the first e-mail message that I’ve got from him,” Burt said. “I’ve known him for many, many years. I would not consider the notes that come along with him to be any more explanation than the decisions themselves. When you talk to a friend you don’t start declaiming that you’re writing a constitutional opinion. … It’s just amplifying what’s on his mind and getting feedback.”
David Rosen, a senior research scholar at the Law School and a Slifka trustee, said he and many others consider Barak, whom he called the “John Marshall” of Israel, the “world’s greatest living jurist.” He said it is unlikely that Barak intended for the e-mail to be leaked to the press, as some Israeli pundits have speculated.
“While anything’s possible, that sounds far-fetched to me, because there are so many other ways that he would have to make his views known,” Rosen said. “[In] everything from his opinion, speeches, articles, conversations, letters, you name it.”
Barak declined to comment on the e-mail last week, calling it a personal matter.
Though some scholars regard Barak as a “national hero” in recognition of his efforts to protect civil liberties and establish the authority of the Israeli courts, Barak is a highly controversial figure throughout the Middle East. Israel is not a clear constitutional democracy — 13 separate “basic laws” comprise a loose constitution — and some judges have denied that judicial review is an advisable role for jurists to take on.
One current Israeli Supreme Court justice, Michael Cheshin, recently condemned Barak’s position in favor of overturning the law.
The decision itself, stemming from a challenge to the law in question by six Israeli-Arabs married to Palestinians, was notable for several reasons. The ruling represented one of the last for Barak, who must retire by law this year at the age of 70, after nearly 30 years in the judiciary.
The legal question also had broad implications — from addressing the question of whether the Israeli constitution calls for equality to exploring whether barring married Palestinians from citizenship effectively reduces terrorism. The opinion itself filled an unprecedented 233 pages, and Barak’s position in favor of overturning the law was overruled by a single justice in a 6-5 vote.
“This is an issue that sort of has been in the court for years now,” said
Danny Priel, a post-doctoral student at Yale Law School who once clerked in the Israeli Supreme Court.
“The majority said there was no violation of equality, and if there was, it was done for a proper purpose.”
Priel said the Basic Law protecting human rights differs from the Bill of Rights in that it is “very loose and vague,” and defends “very, very few rights.”
But Barak, Rosen said, has been instrumental in trying to define more rights.
“The Israeli Supreme Court, led by Justice Barak, has identified powerful civil liberty principles that the Court has insisted that Israel must follow even in the face of sustained terrorist attacks and threats to the existence of the nation,” Rosen said.
Barak has lectured at the Law School in recent years on topics ranging from judicial restraint and civil liberties to the constitution in 2020.
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Article No. 5 in Talkbacks: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
Judicial power grab May 18, 2006 / By Evelyn Gordon
Sunday’s High Court of Justice ruling on the amended Citizenship Law mandates urgent action by the government. The critical task is not drafting new immigration legislation, though this, too, is necessary, since the current law expires on June 30, and the court clearly indicated that it would not approve a lengthy further extension. Rather, it is reforming the judicial selection process – because without this, the government will be unable to enact any immigration legislation.
(…) Yet on what grounds could the court approve such harsh restrictions on a “right” that it has already declared trumps competing considerations such as security? Justice Minister Haim Ramon’s proposed solution is to enact the reform not as ordinary legislation, but as a Basic Law.
(…) YET NOW, Barak has declared that the court is even authorized to overrule the “constitution”!
Given all this, it is clear that neither immigration restrictions nor any other policy disliked by the justices has any chance of being upheld by the current court. However, the government currently has a rare chance to significantly alter the court’s composition: Four of its 14 seats are now vacant, and a fifth will open shortly, when Barak retires. That is enough to create a solid majority that would uphold immigration reform, and even a sizable bloc that would favor less judicial intervention in policy in general.
However, this is possible only if the judicial selection process is radically overhauled – because today, the justices essentially select their own replacements, so any new appointees will almost certainly share the current majority’s views.
Currently, new justices are chosen by a nine-member panel consisting of (…) The result is that never has a new justice been chosen over the sitting justices’ objections, and only rarely have the justices’ candidates been rejected.
Moreover, both Barak and his designated successor, Dorit Beinisch, belong to the court’s radical wing: Both voted to overturn the existing Citizenship Law; both hold extremely expansive views of the court’s right to overturn government policy in general; and both openly oppose the appointment of anyone who believes that the court should show more deference to the elected government. A selection panel dominated by either one is therefore certain to appoint justices with similarly radical views.
THUS IF the government is to have any hope of enacting immigration reform – or any other policy frowned on by the current justices – it must reform Israel’s judicial selection process to bring it into line with those of other Western democracies.
In other democracies, the appointment of justices is left entirely to the executive and legislature; the justices themselves have no say in the matter. And this is essential to maintain a proper balance between the three branches of government. Otherwise, the enormous power that the court derives from being the ultimate arbiter of legality, combined with the justices’ complete independence once appointed (since they receive lifetime tenure, they need not curry favor to retain their positions), would leave the elected branches powerless against the justices’ whims.
That is precisely the situation in Israel today: When the court denies the elected government the ability to set policy on an issue as fundamental as immigration – based on a self-created “right” anchored in no law whatsoever – the balance of power is clearly grossly skewed in the court’s favor.
But only by radically reforming the judicial selection system can this imbalance ever be corrected.
JIWON:For the entire text, please click Selected Articles 1: Beinisch, Friedmann, Sex-Scandal, Corruption (Kangaroo Court from Sep 12, 2003)
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Justice Cheshin: Barak ready for people to blow up for human rights
Last update – 10:38 24/05/2006 / By Yuval Yoaz, Haaretz Correspondent, and Haaretz Service
“Justice Aharon Barak is ready for 30, 50 people to be blown up, but we will have human rights. I am not ready for that. He thinks that; I think differently. To my great happiness, I am in the majority.” These remarks are from an interview with Haaretz marking Justice Mishael Cheshin’s retirement from the Supreme Court, which appears in Friday’s magazine.
But speaking to Army Radio on Wednesday morning, Cheshin said that he regretted the comments.
“I have no personal dispute with the [Supreme Court] President Aharon Barak. I regret what I said in the heat of the moment,” Cheshin said.
Cheshin’s remarks refer to the ruling two weeks ago by the High Court of Justice on family reunification. Six of the justices on the 11-judge panel, including Cheshin, chose to turn down the appeal and uphold the amendment to the Citizenship Law prohibiting the unification of families in which one spouse is Palestinian and the other is an Israeli Arab. The minority opinion, with which Barak sided, sought to overturn the law.
“I am not ready to take a risk,” Cheshin continued. “Not at the Park Hotel and not in Haifa and not in buses that blow up in Tel Aviv. Why should I take a risk? However you look at it, we are dealing with an enemy state.
“As far as I’m concerned, if someone should enter and collaborate with terrorists and kill four or five Jews or Arabs who are Israeli citizens – I do not want that to happen. I want to know why I’m obliged. There’s no country in the world with a constitutional right to allow a foreigner into the country, let alone an enemy.”
Regarding his long-running competition with Barak, Cheshin said, “I created my own shadow, I wasn’t in anyone’s shadow. I never said yes when I did not think yes and I never said no when I didn’t think no. He is a very dominant jurist, and to my delight I succeeded in angering him in a few instances.”
Cheshin has this to say about attempts to change the system under which seniority is used to determine the president of the Supreme Court.
“Malicious people are raising these ideas,” he says, “only because of [Justice Dorit] Beinisch. Whoever raised the seniority question wants to subject Beinisch to a targeted assassination because of a personal vendetta. It is posing as a normative proposal but it is actually a personal proposal to screw Beinisch. There are so many reasons for the president to be the most senior justice, but that does not interest anyone.
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Court rules to uphold Citizenship Law
May 13, 2006 22:52 | Updated May 15, 2006 0:01 / By Jerusalem Post, Dan Izenberg
An expanded panel of 11 High Court justices voted six to five to reject eight petitions calling for the nullification of a provisional law barring Palestinian men younger than 35 and women under 25 from living with their Israeli spouses inside Israel.
The law also prevents children of mixed marriages older than 14 who were not born here and do not have citizenship from living with their Israeli parent inside Israel.
The law in question was the Citizenship and Entry to Israel Law (Temporary Provision), which the Knesset passed on July 31, 2003 for a period of one year, with the right to extend it indefinitely for a maximum of one year at a time. Originally, the law virtually froze the family reunification procedure for Israeli and Palestinian couples and prohibited new mixed couples from applying for the right of the Palestinian to live with his or her Israeli spouse inside Israel. Last year, the law was modified to allow Palestinian men younger than 35 and women under 25 to begin the application process and also eased up on other restrictions.
The petitions, the first of which was filed a few weeks after the law was first passed, were aimed at the original provisions but continued to apply to the modified law which was passed on August 1, 2005 and is due to expire on July 16.
The bench divided essentially into three groups. The first, headed by Supreme Court President Aharon Barak, voted to reject the law. Its members agreed that the right of a citizen to live with his or her family inside Israel was a constitutional right guaranteed by the Basic Law: Human Dignity and Freedom.
Most of these justices accepted the state’s argument that the law was passed for a worthy cause, in that Palestinians who were given Israeli identity cards and allowed to travel freely throughout the country could pose a security threat. But they also argued that the injury to the human rights of the Israeli members of the mixed families was greater than the benefit achieved by the law in its current form and that the law should therefore be nullified.
Barak was backed by justices Dorit Beinisch, Salim Joubran, Ayala Procaccia and Esther Hayut.
A second group, which also included five justices, was led by retired justice Mishael Cheshin. Cheshin, backed by Justice Miriam Na’or, argued that a citizen did not have the right to force the state to allow a foreign citizen to immigrate to Israel and that Israel, like all sovereign states, had the right to prohibit the immigration of a foreign citizen.
The other three members of this group were prepared to concede that the right to family life as defined by Barak and his supporters was correct. However, all agreed that even if denying citizens that right did cause injury to civil rights, the law fulfilled the conditions contained in the basic law, which justified causing the injury to human rights. These conditions included the fact that the law was meant to achieve a worthy purpose and that the injury it caused to human rights was not excessive.
In addition to Cheshin and Na’or, Justices Asher Grunis and Eliezer Rivlin and Acting Justice Yonatan Adiel called for rejecting the petition.
The 11th and deciding vote was cast by Justice Edmond Levy, who agreed with the group led by Barak that the provisional law violated the human rights of the Israeli spouses and that the injury it caused to those rights was excessive. However, Levy wrote that given the existing terrorist threat, the court could not leave a vacuum by rejecting the provisional law when there was no law to replace it. He therefore ruled that the petitions should be rejected but that the state should change the current law within nine months.
It is hard to assess the implications of the decision beyond the obvious fact that the court approved the law for the next nine months. By the time the deadline set by Levy expires, neither Cheshin nor Barak will be sitting on the court, and it is impossible to assess how the court at that time, with its new composition, would rule on a similar petition.
Meanwhile, the petitioners were angry and disappointed over the ruling. “The High Court failed today in its basic responsibility to protect human rights and to protect the state from itself, after the government and the Knesset legislated such an injurious, racist and harmful law,” said Dan Yakir, legal adviser for one of the petitioners, the Association for Civil Rights in Israel.
“The High Court has now joined the other branches of government in dealing an extremely severe blow to the basic right to family life and the right of equality. Essentially, the court has offered an incomparably cruel choice to Israeli citizens. Either to choose a mate whom they want and love and to lose their homeland, or to give up the one they love and remain in their state, the State of Israel.”
Another petitioner, Meretz MK Zehava Gal-On, said, “I am very disappointed by the High Court’s decision. I must admit I hoped the High Court would be the last bastion in defense of democracy and the principle of equality and the basic code of human beings to establish families. But the High Court gave the stamp of approval to the fact that there are Class A and Class B citizens in Israel.”
According to Cheshin, the state has a sovereign right to decide who may enter the country and receive resident status. The right to human dignity goes not include an obligation by the state to allow entry of foreign citizens.
Obliging the state to accept into its midst a foreigner who automatically receives official status changes the status quo ante regarding the existing relations between its members. However the human dignity of each individual citizen makes it mandatory that no single one of them can forcefully impose a change in these relations by marrying a foreign citizen and bringing him or her to Israel.
Secondly, wrote Cheshin, Israel is in a state of war with the Palestinian Authority and the terrorist organizations. During times of war, the state is not obliged to allow citizens of the enemy entity to enter the country, even if they marry local citizens.
Cheshin also argued that the provisional law met the criteria set by the Basic Law: Human Dignity and Freedom for violating its terms. Not only did the law serve a worthy purpose, but the good it did by protecting Israelis was greater than the harm it caused by preventing Israelis and Palestinians from marrying and living in Israel.
According to Cheshin, “The good that [the law] brings to the security and safety of the residents of Israel is more important than the harm caused to a small number of Israeli citizens who married residents of the West Bank and Gaza and seek to live with them in Israel. The law was enacted in accordance with information presented by the security forces, which said that the terrorist organizations try to enlist Palestinians who have already received or will receive Israeli documentation and that the security services have a hard time distinguishing between Palestinians who might help the terrorists and those who will not.”
Procaccia, on the other hand, questioned the state’s credibility regarding the purpose of the law. She wrote that it appeared that security was only part of the reason for legislating it. The state’s other concern was the alleged demographic threat to the Jewish majority in the country by granting Israeli status to a large number of Palestinians. She added that even granted that Palestinian spouses constituted a certain threat to Israel, it was not as great as the state made it out to be.
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TWO YEARS and NINE MONTHS HAVE PASSED…
SHOULD I COLLECT MORE ARTICLES?
INBETWEEN
Aharon Barak’s agenda Nov 16, 2005 21:32 | Updated Nov 17, 2005 6:35 / By Jerusalem Post, EVELYN GORDON
For sheer, unmitigated hypocrisy, it would be hard to beat Supreme Court President Aharon Barak’s justification for opposing Prof. Ruth Gavison’s Supreme Court nomination. In a lecture last Friday, Barak said that while Gavison is “completely qualified” for the post, he objects to her because “she comes to the Supreme Court with an agenda” regarding the court’s proper role in society. “That is bad in and of itself,” he declared. “That isn’t our system… One’s conception of one’s role should develop during one’s tenure.”
That, of course, is patently ridiculous: As one judge commented to Haaretz this week, “How can you expect a senior jurist, some 60 years old, not to have opinions about the court’s role?” But it is particularly egregious coming from a man who has systematically made the court a vehicle for his own agenda during 27 years on the bench.
Barak has an extremely well-developed view of the court’s proper function. In a nutshell, it is that the court should be the arbiter of every major political and social issue. As he explained in a 1992 article, “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… There are no areas in life which are outside the law.”
Moreover, as he wrote in another article, the court must decide such issues “according to the views of the enlightened community in Israel” – where the justices, of course, are the arbiters of what qualifies as “enlightened.” In other words, Supreme Court justices are the modern equivalent of Plato’s philosopher king: Their job is to impose their own “enlightened” views on the nation.
To put this agenda into practice, Barak persuaded his colleagues on the bench to eliminate two procedural barriers to judicial intervention that had been in place since the court’s establishment, and are still in place in most other Western countries.
One, the doctrine of “standing,” held that only someone with a direct, personal interest in a case could petition the court on that issue. Barak decided instead that anyone could petition the court on any issue, thereby ensuring that someone could always be found to bring every major issue to the court’s doorstep. The second, the doctrine of “justiciability,” held that the court should not rule on certain issues because they are properly the purview of the legislature or executive. Barak held instead that since “no areas in life… are outside the law,” no issue can be beyond the court’s purview.
HAVING SUCCESSFULLY eliminated these procedural barriers, Barak then abolished the one remaining check on the court’s power: the Knesset’s ability to overrule the court through legislation. He did this by declaring that two 1992 Basic Laws supported by a mere quarter of the 120-member Knesset – Human Dignity and Liberty (which was approved 32-21) and Freedom of Occupation (23-0) – comprised a constitution, and therefore entitled the court to overturn subsequent legislation passed by far larger majorities if, in the court’s view, it conflicted with these two laws.
The fact that no other country in the world has ever adopted a constitution by minority vote troubled Barak not at all. Neither did the fact that most MKs did not intend these laws as constitutional legislation (as Barak himself admitted, Israel’s “constitution” came into being “almost secretly”). Asserting constitutional status for these laws was essential to his program – especially since they are worded so vaguely that virtually anything a justice opposes can be held to contradict their principles – and he therefore insisted that they indeed authorized the court to overrule the Knesset.
AND, JUST as Barak intended, the court is indeed now deciding virtually every major issue. It is determining the route of the separation fence, which may well define Israel’s future borders; dictating immigration and citizenship policies (both by defining who is a Jew, and thereby entitled to automatic citizenship, and via various cases dealing with naturalization); setting budgetary priorities (in one pending case, it has already asserted the right to set a minimum level for government welfare payments; in another, it asserted the right to expand national health insurance coverage); intervening in sensitive family matters (from recognition of gay couples to criminalizing spanking); and even dictating wartime military tactics (with regard to both specific operations, such as one in Rafah in May 2004, and general policies, as in a pending petition against targeted killings of terrorists).
Thus what really bothers Barak is not the existence of an “agenda,” but the existence of a different agenda – namely, Gavison’s belief that such major public issues should be decided by the people’s elected representatives rather than the court. He even admitted as much later in his speech, charging: “Her agenda is not good for the Supreme Court.”
That, however, is a highly debatable proposition. Indeed, traditional democratic theory sides with Gavison: It holds that major issues are supposed to be decided by the people, via their elected representatives, rather than by an unelected court. By usurping the legislature’s role in making such decisions, the court has made normal democratic politics – which centers on trying to elect people who share your views – largely irrelevant. It has thereby gutted our political culture, increased alienation and undermined belief in the value of democracy. And ultimately, it is liable to undermine the court itself – because the court, like any other dictator, will increasingly become the focus of popular resentment.
The choice between Barak’s approach and Gavison’s is one that every democracy must make, as it fundamentally affects the shape of society. As such, it deserves to be debated openly and thoroughly. Barak’s attempt to quash this debate by hypocritically declaring all “agendas” hors concours is merely the latest salvo in a decades-long effort to subordinate Israel to one particular agenda – his own.
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Israel Amends its Citizenship Law: A Wall Through Arab Families
CHALLENGE – A Magazine Covering the Israeli-Palestinian Conflict
From Challenge # 82 November – December 2003 / By Michal Schwartz
human rights
On July 31, the Knesset amended the Citizenship Law (1952), denying citizenship to applicants who are spouses of Israelis if these spouses come from the West Bank or Gaza. The amendment will stand for at least one year and then come up for renewal. It will immediately affect more than 20,000 families, while limiting the marital prospects of many more.
NO ISRAELI LAW prevents Arab citizens from marrying Palestinians of the Occupied Territories. A new amendment to the Citizenship Law, however, makes such marriages impossible unless the Arab citizen leaves Israel. It freezes all naturalization procedures aimed toward family unification, where these concern Palestinians who have already married Arabs in Israel. It even forbids their continuing to reside in Israel as non-citizens. It does not help if the spouse has long been living here, has children here, and was well underway toward family unification.
The new amendment places such “mixed” couples before difficult choices: Either the Palestinian living in Israel must become illegal and go underground, or the family must split, or – and this would appear to be the law’s hidden intent – the entire family must pull up stakes and move to the Occupied Territories.
Laundering the words
The heart of the new amendment may be found in Article 2: “During the period that this law remains in effect… the Minister of the Interior will not grant a resident of the region citizenship according to the Citizenship Law, nor will he give him a license to reside in Israel according to the Law Concerning Entrance Into Israel, and the [military] commander of the region will not give said resident a permit to overnight in Israel according to security regulations in the region.”
In order to blur the racist overtones, the amendment is formulated in “newspeak”. Instead of admitting that the measure singles out a particular national group, instead of saying quite simply, “Palestinians of the Occupied Territories,” the legislators write “a resident of the region.” The “region” is then defined as one of the following: “Judea, Samaria, or the Gaza district.” The Jewish settlers there belong, however, to a separate category: in defining “a resident of the region,” the legislators qualify: “except for a resident of an Israeli locale in the region.”
The law serves as a means of collective punishment against all Arab citizens of Israel who may wish to marry Palestinians from the Territories. They may marry anyone else, just not those. The sanctity of the family, a value recognized in international law (in Israeli law too) as a fundamental right, here receives a peculiar pruning.
The amendment does make exceptions, however: for collaborators, that is, any resident of the region “who identifies with the State of Israel and its goals, when he or a member of his family has taken concrete action to advance the security, economy or any other matter important to the State.”
The Interior Minister may also grant exceptions, at his discretion, to persons who wish to enter Israel for less than six months.
The reason is demography
The proponents of the amendment justify it on security grounds. In fact, former Interior Minister Eli Yishai already froze all procedures for family unification back in May 2002, after a suicide attack at the Matza Restaurant in Haifa. The perpetrator was the son of an Arab woman with Israeli citizenship and a man from the Territories.
A close look, however, reveals that the security pretext is false. Prior to this amendment, the procedures for gaining citizenship answered all security concerns. These procedures included many phases, lasting on average more than four years. During this application period, the authorities investigated every possible factor, security or criminal, that might be grounds for denying citizenship. (We encountered one case where the applicant underwent 38 security checks.) The lengthy waiting period also sufficed to test whether the marriage was fictive or real.
Another thing belies the claim of security: As mentioned, the new amendment does not prevent a Palestinian from entering Israel to work or receive medical treatment. Such a person is not considered a “ticking bomb”. He turns into one, however – according to the amendment – the moment he wants to establish a family. Thus every Israeli citizen who enters a romantic relationship with a Palestinian from the Territories becomes, by that fact, suspect of plotting a terrorist act. Even Knesset member Ruby Rivlin, a certified right-winger, criticized the law on this point: “It says everyone is guilty until proven otherwise.” (Knesset Committee of the Interior, July 21.) That did not keep Rivlin from voting in favor.
The motive for the amendment has nothing to do with security but everything to do with demography. (The Arab citizens made up a sixth of Israel’s population twenty years ago; today, despite the influx of a million immigrants from the Soviet Union, they are a fifth.) Knesset member Gideon Ezra laid the demographic cards on the table at a meeting of the Interior Committee on July 29: “We are a Jewish State that wants to make it possible for the citizens of the State of Israel to live with the people they love and want. It is unthinkable that the State of Israel will be the state that takes in, while Judea and Samaria will be the state that spews out. It is unthinkable that, in the end, we will also be asked to bring back the settlers from Judea and Samaria. The State of Israel does not intend – and the government of Israel certainly not – to create here a Right of Creeping Return.”
On the Road to Apartheid
Despite the attempt to clothe the amendment in the guise of security, it has come in for a storm of condemnation. Knesset member Ahmed Tibi, who is married to a woman from Tulkarem, asked if his children would lose their citizenship. The European Union sent an official protest (leading to an Israeli charge of interference in its internal affairs). The US announced it would check whether the law discriminates against Palestinians. The UN Conference against Racism called for its cancellation. The anticipation of this storm did not prevent 53 Knesset members from approving the measure (versus 25 who opposed). Its parliamentary shepherd was Interior Minister Avraham Poraz of Shinui, a party that prides itself on promoting citizens’ rights.
The Association of Civil Rights in Israel has gone to the High Court in an attempt to forestall implementation of the amendment, but the court has been in no hurry to consider the matter. Its foot-dragging does not bode well.
Nor is that all. According to Ha’aretz (May 28), the Interior Ministry is preparing an additional amendment, refusing to grant automatic citizenship to a child one of whose parents is a resident of the Territories. The initiators of the new measure are Prime Minister Ariel Sharon and the heads of the state security apparatus. The Attorney General, Elyakim Rubinstein, has voiced his support.
None of this need surprise us. The amendment that has already passed, as well as the one to come, fits quite neatly with the current erection of a physical barrier between Israel and the Palestinians, which Israel also seeks to justify on security grounds. In the present instance, Tibi points out, the wall passes right through families. Along with military escalation, there is also escalation in the law books. Here Israel limits the marriage prospects of a million of its citizens. If another land were to pass such a law, limiting the marriage prospects of Jews, what an outcry there would be!
Among the surprise supporters of the amendment we find Ruth Gavison of the Hebrew University’s Faculty of Law. Gavison was president of the Association for Civil Rights in Israel from 1996-1999. She writes that the concept of a Jewish state, which she accepts, logically entails the new amendment to the Citizenship Law. She is correct, but the amendment precisely demonstrates the racist character of the concept.
THREE INSTANCES
1. Temporary person
S. is a West Bank resident married to an Israeli citizen. They have three children. “This was not an arranged marriage,” he says, “but a marriage of love.” They were wed in 1997. A year later he received a temporary permit to work in Israel (“Before that I worked illegally”). In 1999 he got a temporary identity card, enabling him to live and work here. He managed to renew it four times until the freeze went into effect.
S says: “When I want to enter the West Bank to visit my relatives, the soldiers treat me as an Israeli and keep me from going in. I have to sneak around them. When I want to come back to Israel, they treat me as a Palestinian and raise obstacles. I suffer in both worlds. I live in perpetual uncertainty. It’s not clear whether they’ll let me be with my family or whether they’ll separate us. I’ve become a temporary person.”
2. Humiliation at the Damascus Gate
In 1990 H. of Bethlehem wed a woman from East Jerusalem, where they have lived since then. We should note that the Arabs of East Jerusalem are not citizens, rather “permanent residents”. In order to maintain even this status, they must constantly demonstrate that their lives are centered in Jerusalem. This involves endless bureaucratic wrangling. They have a blue Israeli identity card, but no Israeli passport. They may vote in local elections only. Palestinians from the Territories have green (formerly orange) ID cards. If they want to get the blue one, they have to undergo family unification.
In 1994 H. began the procedures toward the blue ID, but although he has presented abundant documentation showing Jerusalem as the center of his life, he has still received no answer. In 1997 he got a temporary license to work in Israel, which he has to renew bimonthly. This means standing in the notorious line of the Interior Ministry in East Jerusalem. In the year 2000 he received the right to reside in Jerusalem, which he has to renew each year. The law allows one to apply for permanent residence after five years on a temporary basis. When he finally was able to do so, in November 2002, the deep freeze was already on. He missed the train.
Says H., “More than once the soldiers made me get down from the bus and stand with hands raised at the Damascus Gate in the blazing sun. I live in suspense. When I visit my family in Bethlehem, I don’t know if I’ll get home to my wife and children. This is no life.”
3. Abortion at the checkpoint
M. is a Jerusalem resident, married to a Hebronite. The two live with their children in Anatha, which is divided between the annexed part of Jerusalem and the rest of the West Bank – and which therefore has a permanent checkpoint. Here his wife regularly passes through the nine circles of hell. In 1996 M. applied for family unification, which would gain her permanent residency. Three years later she got a permit allowing her to dwell temporarily in Israel. This she must renew annually. Occasionally there were bureaucratic delays; in 2002, for instance, her permit was not renewed. For a long period she was forced to go about without documents.
“Last January,” reports M., “my wife was stopped at the checkpoint. She was in the advanced stages of pregnancy, but despite this the soldier wouldn’t let her in. She had to take a roundabout way by foot, following a hazardous trail. A few days later we discovered that the fetus was dead. A check-up showed that it had died on the day they harassed her at the checkpoint.”
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NGOs Condemn Israel for Citizenship Rules, Ignoring Context and Impact
August 20, 2003 / By NGO Monitor Digest (Vol. 1 No. 12)
Summary: HRW (Human Rights Watch), AI (Amnesty International) and Adalah (based in the Israeli Arab sector) have embarked on a campaign to condemn the Knesset’s an amendment to Israel’s citizenship law. These organizations continue to exercise selective morality in their use of politically loaded terms.
(NO NEED TO POST THE ENTIRE TEXT…)
Appendix
The full text of the FAMILY UNIFICATION IN TWO STATES
Prof. Ruth Gavison, Yediot Ahronot, 5.Aug.2003, p. B11 [Translated by The Israel Government Press Office]
The justice of the amendment to the Citizenship Law is anchored in maintaining the Jewish People’s right to self-determination.
The amendment to the Citizenship Law which was approved on the last day of the Knesset’s [summer] session faces Israel with a major challenge – moral, political and legal. It determines that applications by Palestinians who reside in the territories to be united with their spouses and families in Israel will no longer be done according to the general principle for family reunification requests, as long and difficult as it may be. The relevant considerations will not deal only with the personal and particular aspects of the one applying to receive residency and citizenship by virtue of family unification but with systemic and general aspects as well. A Palestinian residing in the territories and the Israeli citizen who is a member of his family will no longer have the right to family unification as before.
Arab and international organizations have already condemned the new law as racist and discriminatory, and as infringing on the right to carry on family life. Even in the US, it is being said that the law must be checked to see whether or not it meets the necessary standards vis-?-vis the principle of non-discrimination. And this is only the beginning. There is no doubt that the High Court of Justice will be asked to rule on the claim that the law is unconstitutional, so we can expect tensions within the legal system and in relations between the legislature, government and the courts.
The right to maintain family life, with all its importance, is not doing the work here. The citizen of one country who chooses to bind his life with that of another person who is not eligible to reside in that country must take into account that carrying on life together can be done only in another country. True, most countries – Israel among them – make it easier for their citizens to provide residency and citizenship to close family members who are not citizens from the outset, but a citizen’s right in this context is only that his request will be dealt with without invalid discrimination or irrelevant considerations.
There is no doubt that the new law is based on ethnic classification, suspect at first glance, i.e. Palestinians who reside in the territories. The amendment specifies that this is a unique group, whose family unification requests may justifiably not be dealt with in the same manner as those of other groups. The law’s constitutional and moral validity are based on the persuasiveness of this claim (I will not discuss here the important question whether the provisions of the law meet the constitutional requirement of proportionality).
Some seek to justify the invocation of this suspect classification based on neutral reasons of “security.” I think that this claim is not persuasive. The real possible justification lays in its being part of the effort of ensuring Israel’s future as a state in which the Jewish people can realize their rights to self determination against the background of the existing conditions in the area at this time. A Jewish state must not discriminate between its citizens, and it also cannot discriminate against those who ask to reside in it, even if the person does not have an entrenched right to do so. But whoever believes that it is justified for it to be a Jewish state, must accept that it is permissible, and maybe even obligatory, for it to maintain the conditions which will allow for its continued existence, as long as they do not harm the rights of others, both those living in it and outside it.
The idea of a Jewish state is justifiable for reasons based on security and the well being of the community, and also on cultural and identity grounds. This entails the Jewish state being in control over migration into the country, including ensuring that there is a Jewish majority through legitimate means, and preserving a Jewish-Hebraic popular culture. It includes also ensuring the full rights of minorities, but at the same time ensuring that the minorities are not allowed to de-legitimate the continuation of the State of Israel as a Jewish state. Under present circumstances, these points should provide a rational basis for singling out the Palestinians who are residents of the territories vis-a-vis emigration policies and family unification.
Anyone who advocates a stable solution of two states for two peoples cannot demand recognition of the Palestinian right for family reunification within the borders of the State of Israel, irrespective of numbers or the nature of the relations between the communities. Generally, Palestinian families should unify in their state, and Jewish families should unify in theirs. This principle will help to stabilize the independent migration of the two nations, and will reduce the danger of deteriorating into civil war or irredentism in the two states. Such stability in itself will help to maintain both individual and group rights and in dealing with family unification requests on a humanitarian and individual basis, as is desirable.
(Prof. Ruth Gavison is a full professor at the Hebrew University Faculty of Law. She was president of the Association for Civil Rights in Israel (ACRI) 1996-1999. Gavison is a member of the International Commission of Jurists and a Senior Fellow, Israel Democracy Institute, since 1997.)
