THINK-ISRAEL

The rule of law is the legal principle that governance is by a specific set of rules rather than by arbitrary power. These rules apply to all the people including those who make the laws.

PART 1: DEMOCRACY AND THE SECRET “RULE OF LAW” IN ISRAEL

There is much misunderstanding in the Diaspora and even in Israel about Israel’s system of government—an assortment of institutions that endow a few men with concealed and despotic power.

A basic reason for this pernicious state of affairs is Israel, unlike France or the United States, has no written constitution. Instead, Israel has a crazy-quilt variety of “Basic Laws” passed at different times by different governments led by different political parties.

Israel’s first Basic Law, The Knesset, was initiated by the Knesset Law Committee in 1958, ten years after the founding of the State. Some other Basic Laws are Israel Lands (1960); The President of the State (1964); The Government (1968); The State Economy (1975); The Army (1979); Jerusalem, Capital of Israel (1980); The Judiciary (1984).

A word about Basic Law: The Government. This law stipulates, “The Government is competent to do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.” The Government can therefore declare war, make treaties, and change the exchange rate without ever consulting the Knesset!

(Note: Treaties are not ratified by the Knesset; they are merely announced by the Government and published within 20 days thereafter. The Knesset may pass a resolution in favor of a treaty, but this has no legal significance. Of course, the Government fosters Knesset approval to make a larger number of MKs complicit in a prime minister’s autocratic, if not criminal, deeds.)

One would think that a Basic Law, like an amendment to a Constitution, would require the approval of a super-majority of the Knesset as well as a popular referendum. Not in “democratic Israel.” Here Basic Laws are enacted by ordinary legislative procedures; and what makes this outrageous, is that in Israel, no quorum is required to pass legislation. In fact, Israel’s most important Basic Law: Human Dignity and Freedom (1992), was enacted with only a minority of the Knesset present and voting!

Nevertheless, former Supreme Court president Aharon Barak construed this law as endowing the Court with the power of judicial review. This interpretation of Basic Law: Human Dignity and Freedom was nothing less than a judicial coup d’état, for it prompted Barak to decree that “everything is justiciable.” The dictum “everything is justiciable” logically includes the laws bestowed at Mount Sinai. Barak made the Court not only a super-legislature, but one that arrogates to itself the power to prescribe the morality of the Jewish people!

Such is the Court’s unprecedented power—unequaled in any democratic country—that Barak, a left-wing cultural relativist, went so far as to rule in 2005 that Basic Law: Human Dignity and Freedom did not apply to the Government’s expulsion of 10,000 Jews from their homes in Gaza and northern Samaria.

So what is “basic” about a Basic Law? Depends on the whim of the Supreme Court. Barak’s dictum that “everything is justiciable” makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It would be more accurate to classify Israel’s system of governance as a judicial despotism. This is very much the opinion of various scholars, including the eminent American Judge Robert Bork.

It will be asked: “Why doesn’t the Knesset curtail the power of the Supreme Court?” In theory, it has the power to do so, but there are other secrets about “Israeli democracy.”

As I have often pointed out, Israel makes the entire country a single electoral district, which precludes regional elections—the practice of almost all democracies, 26 of which are smaller in size and population than Israel. Israelis are compelled to vote for a party list, and parties win Knesset seats via proportional representation.

The Knesset is not a “House of Representatives” accountable to voters but a “House of Parties.” Since MKs are not individually accountable to the voters in constituency elections—which enables them to ignore public opinion with impunity—they have a vested interest in preserving the existing system. This system, superficially democratic, renders the people powerless: it effectively disenfranchises them. Let’s be more specific.

Although public opinion in Israel has been more right-wing than the Government on the territorial issue, the Government, regardless of which party or party coalition has been at the helm, has pursued the fatal policy of “land for peace.”

This policy has been supported by the Supreme Court, dominated by Israel’s left wing. The Barak court ruled that Judea, Samaria, and Gaza constitute “belligerent occupied territory”—a position thoroughly refuted by Attorney Howard Grief, as may be seen in his just published book The Legal Foundations and Borders of Israel Under International Law (Mazo Publishers).

However, if the Knesset were to make its members individually accountable to the voters, a large majority of the latter would demand an end to the Court’s dictum that “everything is justiciable,” the dictum that enabled the Court to sanctify the Government’s expulsion of Jews from Gaza—the fate awaiting hundreds of thousands of Jews in Judea and Samaria. We see, therefore, that democratizing the Knesset would lead to democratizing the Supreme Court, which would thwart implementing the policy of “land for peace.” This secret needs to be exposed. Nor is this all.

The policy of “land for peace” needs to be seen as a consequence of the absence of the rule of law. MK Ruby Rivlin had the candor and courage to admit that what is called the rule of law in Israel is really “a gang that rules under the façade of the rule of law.”

This secret should be vigorously exposed by opponents of “land for peace.” Demonstrations against “land for peace”—all honor to the participants—will fail unless they actively pursue a constructive and inspiring goal: radical reform of Israel’s entire system of governance.

It’s not enough to rue the lack of leadership in Israel. Israel needs leaders committed to the reconstruction of the very foundations of the state, leaders armed with profound knowledge of institutions—the kind needed to make Israel a Jewish commonwealth capable of conquering her enemies.

PART 2: REVIVING THE RULE OF LAW IN ISRAEL

The rule of law is a basic principle of Torah Judaism and of normative as opposed to normless democracy. The rule of law affirms that those who make the laws are obliged to obey the laws. Accordingly, Jewish law enables private citizens to bring public officials -- including a king -- to the bar of justice. Consistent therewith, the American Supreme Court held that a private citizen can institute a civil suit against a President, as occurred in a case in which President Bill Clinton was accused of sexual harassment. The rule of law as just defined does not exist in Israel.

Abbie Nathan and Shimon Peres made contact with Yasir Arafat in violation of the 1986 Prevention of Terrorism Act. Mr. Nathan, a private citizen, was incarcerated for six months for that felony. Shimon Peres was never indicted.

Moshe Feiglin was convicted of sedition for having organized a demonstration that caused a major disruption of traffic in Israel. In contrast, Arab Knesset Member Hashim Mahameed, who urged Arabs in Gaza in 1991 to “fight the conquerors [i.e. Israel] with all the means they [these Arabs] have,” was not indicted for sedition, or for violating the Prevention of Terrorism Act. In fact, the Knesset did nothing more than suspend for three months Mahameed’s parliamentary privilege of unrestricted access to all areas of the country! What a travesty of justice and the rule of law..

The alternative to the rule of law is the rule of men. The rule of men entails arbitrary government and, inevitably, officially sanctioned violence against citizens who protest Government policies. It is in this light that we are to understand why Israeli police often employ undue force and even brutality against citizens engaged in peaceful demonstrations. Backed by the Government, hence by its Ministry of Justice, the police can resort to such violence without being liable to compensatory and punitive damages -- something unheard of in the United States.

Countless violations of the law or of administrative procedures by elected and appointed officials are annually reported by Israel’s State comptroller, yet virtually nothing is done to bring the culprits to justice. The citizen (as well as the State Comptroller) is powerless to correct these abuses. And so, not only is justice intermittent in Israel, but the deliberate sense of the public is ignored in this pseudo-democracy. Inasmuch as democratic elections are not sufficient to make government accountable to the people, Israel requires a new system of justice, which presupposes nothing less than a just system of government. To implement such a system, Israel will need a revolutionary political party whose ultimate goal is to change the character of the regime—a party, moreover, consisting of professionals who employ an incremental approach to “regime change.”

To illustrate what I have in mind, contemplate a party that has a “ Committee of Justice” whose purpose is to overhaul Israel’s legal system and make it more consonant with Jewish law and democracy. Obviously, the chairman of this committee should be conversant in Jewish as well as in secular law. Consistent with the Foundations of Law Act of 1980, and as stated by Professor Menachem Elon, former Deputy President of the Supreme Court, Jewish Law should be “primus inter pares” (first among equals) vis-à-vis English and American law in Israeli jurisprudence. Jewish law should also be used to make public officials accountable to the people. Our projected “ Committee of Justice” will therefore advocate the following reforms:

First, as in America, a private citizen who suffers injury (as defined by law) from the act of any public official may sue the official for compensatory and punitive damages. The implementation of such a law would dramatically reduce not only police brutality, but the tens of thousands of false arrests that occur each year in Israel.

Second, any suit involving a public official will be tried by a jury composed of qualified private citizens, namely college or Jewish academy graduates. Such a law would greatly diminish the number of “cover-ups” that enable public officials to violate the law with impunity.

Third, no person convicted of a felony will be released from jail prior to the termination of his sentence without the approval of a parole board consisting of qualified private citizens. This will preclude the release of terrorists.

Fourth, any person convicted of a felony will be required to work within the confines of his prison for the purpose of compensating his victim or his victim’s family.

Fifth, no person will be imprisoned for violations of the civil law. Instead, he or she shall be required to compensate, by two-fold, the injured party.

Sixth, plea bargaining will be prohibited. This piece of legal chicanery not only undermines respect for law but enables criminals to avoid justice.

Seventh, any legislator that votes for a bill or treaty that contradicts his campaign pledges to people will be subject to recall, i.e. removal from office (hence the need of constituency elections). The above provisions are but a sample of what is required to make Israel an authentic Jewish democracy, where the rule of law and justice prevail. In fact, it was precisely the absence of authentic democracy and the rule of law that led to the Israel-PLO Accords that released and armed Arab terrorists and even surrendered Jewish land to these murderers! Unfortunately, many Jewish organizations, preoccupied with the deadly consequences of those agreements, have ignored their basic cause, namely, Israel’s undemocratic and self-destructive system of government. These organizations have talented people profoundly devoted to Israel’s well-being and can therefore make a difference.

Summing up: Israel is in dire need of a revolutionary party: first, to expose the Myth of Israeli Democracy, and second, to show how Israel can be made democratic by means of Jewish principles, a precondition for revivng the rule of law in this country.

Professor Paul Eidelberg is an Internationally known political scientist, author and lecturer. He is President of the Foundation For Constitutional Democracy, a Jerusalem-based think tank for improving Israel's system of governance. He is author of "The Myth of Israeli Democracy: Toward a Truly Jewish Israel." Contact him at list-owner@foundation1.org

The Parts of this article were published as independent essays. Part 1 is filed under "Constitution and Rights, Democratic Methods and Representation" on Professor Eidelberg's website.
http://foundation1.org/wp-en/2008/11/26/democracy-and-the-secret-“rule-of-law”-in-israel/. It was first published 26-Nov-2008. Part 2 was submitted May 2, 2012 and is archived at
http://www.foundation1.org/papers-articles/judiciary/law-rule.htm For further information, visit the Israel-America Renaissance Institute website: http://www.I-ari.org

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