Israel’s democratic challenge

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It works out that retired Supreme Court president Aharon Barak – the man who shaped Israel’s judiciary in his own image – doesn’t care much for Jews.



In a speech last Thursday sponsored by the post-Zionist New Israel Fund, Barak said, “If you ask a Jew whether he supports equality with the Arabs, he will say: ‘Certainly.’ And if you ask if he supports kicking all the Arabs out of here, he will say: ‘Certainly.’ He sees no contradiction between the two.”



After denouncing Jews as stupid racists, Barak went on to explain that in his years on the bench, as his anti-Jewish views developed, he gradually abandoned his legal duty to ground his judgments in Israeli law. Instead, he engaged in a free-wheeling dispensation of justice in accordance with his radical political views.



As he put it, “I remember the problems that were brought before me in my 20 years as a judge, when my line of thought was always administrative: How much power do the administrative bodies in the territories have? With time, as my knowledge of international law increased, my outlook began to change. Instead of talking about what is allowed and what is forbidden for Israeli forces, I thought about the rights of the people there: what rights they deserve.”



So by his own admission, during his years on the court, Barak determined what “rights” the Palestinians “deserve,” unfettered by annoying inconveniences like the pretense of law or the normal legal boundaries that inform the decisions of a state governed by the rule of law. It was due to his open contempt for Israeli democracy that under his judicial leadership the country was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered to adjudicate permissible behavior on the basis of their shared radical political preferences.



Barak’s bigoted castigation of Jews in his speech raised a storm of public protest. Unfortunately, the far greater danger exposed by his elucidation of his extra-legal judicial philosophy was largely overlooked. This is troubling because on a national level, it is much more important for Israel to roll back Barak’s anti-democratic judicial revolution than to condemn his personal bigotry.



OUR ELECTED officials took an important first step in this direction last month by electing MK Uri Ariel to serve on the Judicial Selections Committee responsible for appointing judges. Ariel’s election by his Knesset colleagues marked the first time in a generation that the radical judicial activists loyal to Barak comprise the minority of committee members. That is, Ariel’s election opened the door to the appointment of non-radical judges who believe that court judgments should be based on laws, not on political and social agendas.



Now, in the aftermath of Barak’s speech, the Netanyahu government and the Knesset should present Ariel’s election as a first step in an overall policy of reforming the judiciary and the State Prosecution. Specifically, the Knesset should pass legislation reinstating checks and balances on the Supreme Court that Barak removed through judicial fiat as court president. These checks and balances must bar the court from cancelling legally promulgated laws, and block it from using its role as the High Court of Justice to dictate government policy.



Beyond that, the government and the Knesset should pass legislation ending the current untenable situation in which the government and the Knesset are denied legal counsel because they have become the servants rather than the masters of their legal advisers. Over the past decade, coerced by the court and its servile media, the government and the Knesset have been barred from appointing the attorney-general and the Knesset’s legal adviser. Instead these officials are appointed by civil service commissions controlled by retired Supreme Court justices and are consequently informally subordinate to the Supreme Court, rather than to the elected officials they are supposed to be serving. This must end.



Throughout Barak’s tenure as Supreme Court president, he enjoyed unconditional support from the media. Israel’s court reporters and their bosses renounced their primary journalistic duty to act as democracy’s watchdog in favor of behaving as Barak’s guard dog against all who would question the democratic, normative and legal bases of his actions on the court.



For over a decade on a near daily basis, Barak’s media servants castigated critics of his rulings as “anti-democratic,” or “racists,” or “anti-human rights,” or “politically motivated.” Rather than facilitate public debate, these compliant media leaders prevented discussion of Barak’s actions and in so doing, assisted him in weakening the foundations of Israeli democracy still further.



Now, in the aftermath of his anti-Semitic broadside, some of these media figures are upset with Barak. But even as they condemn him for his anti-Semitism, these same lap dogs continue to guard his judicial record from scrutiny.



Case in point is former Haaretz and Globes editor Mati Golan. In an opinion column published in Globes titled, “Aharon Barak’s blood libel,” Golan condemned Barak for his views of Jews. But Golan’s issues with Barak’s statements do more to expose the problem with Golan’s type of journalism than the problem with Barak’s professional record.



Golan warned that by leaving the proverbial closet and exposing himself as a Jew-hater, Barak did the unthinkable. He caused “people to begin to wonder: Is this the man, the genius, the prodigy whose judgments are a candle lighting the paths of all courts? Should this candle continue to guide legal judgments or should it be snuffed out?”



Golan concluded that in the future, Barak should keep his big mouth shut.



Golan’s excoriation of Barak was highly manipulative. He used his criticism of one aspect of Barak’s talk to squelch discussion of a more troubling aspect of Barak’s talk. This media two-step is the stock-in-trade of Israel’s media elite, which like Barak’s court system, is a closed circle of self-promoted brethren marked by ideological uniformity and anti-democratic radicalism.



Although Golan is no longer among the leaders of this media fraternity – which since the 1980s has developed in parallel to Barak’s legal fraternity – his record is notable for his occasional willingness to expose its prejudices, much as Barak exposed the rationale for his anti-legal judicial legacy last Thursday.



What Golan’s record shows among other things is that the source of his anger at Barak’s anti-Semitism stemmed from Barak’s lack of discrimination between “good Jews,” and “bad Jews.” Golan made his own – more selective – anti-Semitism clear in an article he published in The Jerusalem Post in March 2005. There he explained that from his perspective, religious Jews cannot reasonably expect the protections afforded to other citizens of a democracy, because they are religious Jews.



As he put it, “Religion and democracy simply do not go together. Democracy requires an open mind, freedom of choice, the ability to criticize. Religion on the other hand is based on virtually blind obedience to its priests. What some in the religious settler population want is to eat their democratic cake and, as believers, have their anti-democratic one, too.”



Here, not only did Golan expose his ignorance of basic Judaism – a religion founded on deliberation, debate and rebellion against arbitrary power – he demonstrated his illiberal support for authoritarian governance against his political foes. Like Barak, Golan is comfortable with a regime that prejudicially discards the legal rights of one group in favor of the imagined extra-legal rights of another group.



GOLAN’S SELECTIVE anger at Barak points to a second area of Israeli public life in dire need of expansive reform: The media. Today, Israel’s Byzantine media regulatory
system places massive, non-economic bars on entry of new actors into the electronic media market. These obstacles prevent reliable dissemination of news and information to the public and make it all but impossible for competition to arise in the war of ideas.



For instance, to receive a radio license, new stations must agree to broadcast the hourly news updates produced by either by the ideologically uniform Israel Radio or by the ideologically uniform Army Radio. That is, by law, radio operators are effectively barred from producing their own news and compelled to maintain the media fraternity’s monopoly on news reportage and information dissemination.



For the past 20 years, the media fraternity’s rigid ideological uniformity has been enabled by over-regulation and maintained through incestuous self-promotion and replication of news gathering models and news line-ups across the newspaper, radio and television spectrum. Like the legal fraternity it protects and supports, the media fraternity has used its power to successfully bar elected officials from setting the national agenda in line with the wishes of the public as expressed at the ballot box.



For instance, from the onset of the Oslo process with the PLO until Yitzhak Rabin was assassinated, the Rabin-Peres government never enjoyed a majority of public support for its controversial appeasement policy. But the media blocked all public debate by silencing Oslo’s critics as enemies of peace and warmongers. The situation only deteriorated after Rabin’s murder.



The same was the case with the controversial – and disastrous – withdrawals from Lebanon and Gaza. The media has similarly blocked debate of government economic liberalization policies, and educational reform policies.



The story is always the same. Any policy that weakens the position of unelected officials in favor of elected officials is wrong and must be blocked. By smothering debate and manipulating the flow of information, the media have for decades eroded Israeli democracy and diminished the importance of the public’s franchise by weakening the ability of our elected leaders to serve our wishes as we express them when we vote.



During his first tenure as prime minister, Binyamin Netanyahu attempted to deregulate the electronic media in order to facilitate competition in the war of ideas. His efforts were stymied at the time by his own political weakness and by an ad hoc coalition of the religious Right and the secular Left which banded together to prevent the free market from endangering their existing media organs. Once Netanyahu’s attempt was scuttled, the Left wasted no time in using Barak’s court to remove the religious Right from the airwaves altogether.



Today, Netanyahu is stronger, and due to the Internet, the media is notably weaker. The time has come to reinstate his proposed reforms from a decade ago. Television and radio waves should be deregulated. The only bar to entry should be the ability to pay for a broadcast license. The only determinant of success should be a station’s ability to survive financially.



Israel today faces massive threats to its security, its economic viability and its national character. To successfully lead Israel though its current predicament, our politicians need the powers and protections of a properly functioning democracy governed by the rule of law – and not by radicalized lawyers and journalists. It is time for Netanyahu, his government and the Knesset to seize the moment and reinvigorate Israeli democracy.



Originally published in The Jerusalem Post.


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  • John B 07/03/2009 at 12:54

    Thank you very much for this insight. It is profoundly interesting to gain some understanding about what have seemed suicidal decisions made within Israel. It has seemed the country was trying its best to die. The classic comment of one of Israel s leading newspaper editors that he would obtain sexual enjoyment from watching Condoleeza Rice destroy Israel seemed to sum it up.
    I have wondered what is this force within Israel that is trying to destroy it and now, perhaps at least in part, I know. Classical dictator moves: Gain entry into the unelected realms of power and entrench oneself and colleagues. America had better watch out, indeed.
    I note you report Aharon Barak as having said: Religion on the other hand is based on virtually blind obedience to its priests. However it seems that blind obedience is actually what those who sought unelected power were actually looking for. When I think of the massive wave of violence against the so-called settlers by the eviction police I still have to wonder at the true intentions of those who seem to seek the destruction of Israel.
    Is it all part of trying to turn us into a global human race, no differences, no heaven, no hell. Imagine?
    Unfortunately this attempt to destroy difference (not, repeat not, equality under the law) is, according to psychoanalyst Stephen Rittenberg, a perversion of reality.
    In a 2007 essay on perversion he writes:
    Chasseguet-Smirgel’s insight revealed that, besides perverse behavior there are perverse modes of thinking, with the same aim of erasing distinctions and eliminating systematic thought itself. Thus, for example, Post-Modernism represents perverse thinking in its denial of the difference between truth and falsehood, good and evil, superior and inferior cultures. When it argues that ‘male’ and ‘female’ are ‘constructed’ identities, it argues against the immutable differences imposed by biological reality.
    Socialism is similarly perverse in its radical egalitarianism, denying differences of talent, intelligence, motivation, skill. Liberalism’s affirmative action is perverse in its effort to impose an egalitarianism that is unattainable. It seeks to correct the “socially constructed” discriminatory differences. This is perverse thinking. Modern politically correct liberalism is shot through with perversion.
    Civilization is a fragile guardian of reality, which must be defended from the onslaught of barbarians wishing to abolish rules and differences.
    In each of our psyches the perverse temptation must be fought, if civilization is to survive. The more advanced the civilization, the more intense the appeal to throw off constraints. Often individual rebels are rewarded with the title of ‘artist’, but Sade was an artist whose ideas were realized in Nazism.

  • Marcel 07/03/2009 at 13:33

    John B ,
    It can be summed up in one word,evil.
    The proud look began even log before this earths first University of the wise and learned, Tower of Babel University where God had to stop an evil unity of mankind and their god Lucifer.He’s going to stop it again.
    ‘a candle lighting the paths of all courts ?’
    ‘a properly functioning democracy’
    The candle light is a dark destroying black hole and there is no ‘properly functioning democracy’ on this planet.
    Fallen humanity is not up to the task.
    It’s all become irreversibly corrupted.
    The decay is terminal.
    Israel’s big error has been to imitate the great corrupt reprobate undemocratic socialist eagle that is soon to crash into thousands of pieces.
    God has sent destoyers to America.
    ‘Behold, I will make you small among the nations;
    You shall be greatly despised.
    The pride of your heart has deceived you,
    You who dwell in the clefts of the rock,
    Whose habitation is high;
    You who say in your heart, ‘Who will bring me down to the ground?’
    Though you ascend as high as the eagle,
    And though you set your nest among the stars, From there I will bring you down,” says the LORD.’
    Obadiah 2-4
    The highest unholy places of learning in Israel and across the earth teach us doctrines of demons, lies that humanity is evolving.
    The big lie that everything else which mankind has built on this decaying planet has been propped up,that of the supremacy of man is evident on the arrogant faces of many who rule in Israel.
    The pride of Lucifer,the evil eye can be seen in the liberal’s, Putin,Obama,Aaron Barak,Shimon,Kim il ,Chavez,China,Iran,Islam,ect.
    The truth is ,mankind is devolving and it is easy to see is the henious daily headlines from the U.S and Israel and everywhere else.
    The decadence and corruption now is as bad and worse as it was in the days of Noah and God’s Law of Harvest reveals that the rot has grown ripe and reached the point of no return ,only it’s removal is left.
    Caroline ,the truth is everything including democracy is in decay and the only thing which will save Israel from the evil pride of the many Aharon Barak’s who scorn God and His laws is God’s judgment..
    Only He can remove the stench from the bench and from the land,and He will.
    Humility will return,the proud ,evil face will disappear and mankind will realize he is not God.
    The same lie of the serpent in the Garden of Eden to Eve ,’you shall be as God’ will finally be put to rest.
    The face of the LORD is against those who do evil,
    To cut off the remembrance of them from the earth.
    Psalm 34
    The event has been canceled that was mentioned in previous communication, however we believe the video is being used as a message to Muslims for a possible mega terror attack on US soil or US interests as the video says in Arabic “Good News coming soon for Islam” and on another web site the same person that posted the video states that July 5th will be a great day for Islam which was posted 5 days ago. The source of the posting lives in Australia which is a day ahead of us here in the USA, which strongly suggests that there will be a major attack on July 4. Hopefully the US security forces will find and eliminate the possible potential attack(s). We immediately reported our findings to the FBI and requested them to check using their sources the people that posted the video and their connections.
    Keith Davies
    Walid Shoebat Foundation.

  • John B 07/03/2009 at 17:20

    I have a basic principle that apply to finance, politics, anything, and that is that if someone cannot explain things to me in a clear way that I am happy with and understand then either they do not understand the subject, or they are trying to con me.

  • Marc Handelsman, USA 07/03/2009 at 23:57

    Israel sorely needs a written constitution that clearly delineates a balance of powers between the executive, legislative, and judicial branches. The Supreme Court uses “meshugenah jurisprudence” to undermine freedom of speech. If a judiciary uses international law to establish precedents, justice is not served, and the people suffer. The entire political process needs to be reformed to ensure stability, and a united front to confront threats facing the nation. It is time for Israeli lawmakers to draft a constitution, whereby the rule of law would prevail.

  • Marcel 07/04/2009 at 7:31

    John B.
    Maybe this will help ?
    Maybe not ?
    We have an ongoing conflict between the sons of light and the sons of darkness. The sod’s are the majority who rule and control education,government, not so supreme court’s,media,entertainment,wealth,major religions ect.This war is coming to a final resolution with God Himself dealing a final death blow to evil.
    He has spoken light into the darkness and the makority don’t want to hear it (see below) and so there is no excuse for them on judgment day when they cry out to the real Supreme Court Judge for mercy.
    ‘I don’t get it…how could a supreme court judge in Israel be anti Jewish. Are we so ultra liberal that we want to aid those that hate Jews and Israel?’
    18.Rodney T (Jpost/talkback)
    Because Aharon Barak is a son of darkness !
    “There was a certain rich man who was clothed in purple and fine linen and fared sumptuously every day. But there was a certain beggar named Lazarus, full of sores, who was laid at his gate, 21 desiring to be fed with the crumbs which fell from the rich man’s table. Moreover the dogs came and licked his sores. So it was that the beggar died, and was carried by the angels to Abraham’s bosom. The rich man also died and was buried. And being in torments in Hades, he lifted up his eyes and saw Abraham afar off, and Lazarus in his bosom. “Then he cried and said, ‘Father Abraham, have mercy on me, and send Lazarus that he may dip the tip of his finger in water and cool my tongue; for I am tormented in this flame.’ But Abraham said, ‘Son, remember that in your lifetime you received your good things, and likewise Lazarus evil things; but now he is comforted and you are tormented. And besides all this, between us and you there is a great gulf fixed, so that those who want to pass from here to you cannot, nor can those from there pass to us.’ “Then he said, ‘I beg you therefore, father, that you would send him to my father’s house, for I have five brothers, that he may testify to them, lest they also come to this place of torment.’ Abraham said to him, ‘They have Moses and the prophets; let them hear them.’ And he said, ‘No, father Abraham; but if one goes to them from the dead, they will repent.’ But he said to him, ‘If they do not hear Moses and the prophets, neither will they be persuaded though one rise from the dead.’”
    Luke 16

  • Ted Moran 07/04/2009 at 11:45

    Marc Handelsman brings up an excellent point. If Israel has no constitution then any conservative appointments made to insure equal protection of opposing view points will be for nothing.
    I guess I took it for granted that a democratic nation such as Israel had a constitution but I was wrong. A quick look to see if Marc was right led me to an interesting site, Constitution for Israel,
    It is not like that will be 100% effective, as can be seen here in the US. The President, Congress and the courts routinely disregard the Constitution, but at least we Americans can point and say they broke it, because we can see it in black and white. Right now Israelis do not even have this to guide them in understanding how their laws can be interpreted.
    This being the 4th of July here in the US, I have to wonder how Obama’s “halal” barbecue is going? To those in the US or with US roots, wish you all a happy 4th and to those in Israel I wish you a “shalom shabbat.”

  • John B 07/04/2009 at 20:33

    Britain is said not to have a written constitution but it does have a lot of rules and written social contracts that hold the whole thing together with checks and balances.
    A written constitution for Israel can only be to the good I guess but I think its the checks and balances that are important. Somehow Barak has been able to get away with setting and enforcing his agenda without much effective opposition. The whole functioning of democratic power in Israel seems to need some careful analysis by some good brains.
    Perhaps that is what it is now getting from the likes of Caroline!

  • Bill K. 07/05/2009 at 2:17

    Government regulation of news media inevitably leads to their transformation into organs of state propaganda. Any media dependent on the government for its operating license is reluctant to criticize its regulators.
    In Capitalism: The Unknown Ideal in a chapter titled The Property Status of Airwaves, Ayn Rand describes the de facto censorship resulting from government regulation of the airwaves by the F.C.C.:
    “No, the Commission did not censor specific programs: it merely took cognizance of the program content at license-renewal time. What was established was worse than open censorship (which could be knocked out in a court of law): it was the unprovable, intangible, insidious censorship-by-displeasure-the usual, and only, result of any non-objective legislation.”
    “All media of communication influence one another. It is impossible to compute the extent to which the gray, docile, fear-ridden, appeasement-minded mediocrity of so powerful a medium as television has contributed to the demoralization of our culture.”
    “Nor can the freedom of one medium of communication can be destroyed without affecting all the others. When censorship of radio and television becomes fully accepted, as a fait accompli, it will not be long before all the other media-books, magazines, newspapers, lectures-follow suit unobtrusively, unofficially, and by the same method: overtly in the name of “public interest”, covertly for fear of government reprisals.(This process is already taking place.)”
    Rand’s fix for this abuse of government power:
    “There is only one solution to this problem, and it has to start at the base; nothing else will do. The airwaves should be turned over to private ownership. The only way to do it now is to sell radio and television frequencies to the highest bidders( by an objectively defined, open, impartial process)- and thus put an end to the gruesome fiction of “public property”.”

  • BigB 07/05/2009 at 3:03

    Even before Barak came out of the closet, it was clear that the Israeli Media-judicial-academic nexus is essentially as antisemitic as their brethren in Europe and the Muslim world (Eurabia of ideas). We have seen this in the Winograd commission that investigated the Lebanon debacle, where one of the investigators openly declared that the commitee’s deliberations and conclusions were influenced by one over-riding imperative. The prevention of the Netayahu ascendancy following an all out castigation of the Olmert idiot-cracy. The Winograd (another retired chief justice) commission became a farce, its conclusions irrelevant, as did professor Dror lose all legitimacy.

  • Marcel 07/05/2009 at 8:16

    “The Bible is the rock on which this Republic rests.”
    To the victors belong the spoils.
    It is to be regretted that the rich and powerful too often bend the acts of government to their own selfish purposes
    One man with courage makes a majority.
    “The mischief springs from the power which the monied interest derives from a paper currency which they are able to control, from the multitude of corporations with exclusive privileges which they have succeeded in obtaining…and unless you become more watchful in your states and check this spirit of monopoly and thirst for exclusive privileges you will in the end find that the most important powers of government have been given or bartered away….
    – Andrew Jackson, Farewell Address, 1837”
    The natural progress of things is for liberty to yield and government to gain ground.
    Timid men prefer the calm of despotism to the tempestuous sea of liberty
    When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
    When we get piled upon one another in large cities, as in Europe, we shall become as corrupt as Europe.
    Our country is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation of power first, and then corruption, its necessary consequence
    Power is not alluring to pure minds.
    Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
    The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.
    The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it.
    Whenever a man has cast a longing eye on offices, a rottenness begins in his conduct.
    Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition
    Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories
    Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny
    I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.
    I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.
    If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?
    In every country and every age, the priest had been hostile to Liberty.
    Thomas Jefferson
    A dictatorship would be a heck of a lot easier, there’s no question about it.
    When I take action, I’m not going to fire a $2 million missile at a $10 empty tent and hit a camel in the butt. It’s going to be decisive.
    I don’t give a god damn, I’m the President and the Commander-in-Chief. Do it my way. Stop throwing the Constitution in my face, it’s just a god damn piece of paper!” George W. Bush
    You can fool some of the people all the time, and those are the ones you want to concentrate on.
    George W. Bush.
    A constitution is a worthless piece of paper when the people turn away from God,a wicked nation which has rejected the rock has no freedom.
    With perverse men in power who serve the bankers and corporations and queers and daily steal what little freedom remains and the murder of 50 million babies and homosexual perverts in control who poison the minds of our children while the citizens sit back and do nothing ,you don’t realize you’ve already lost this nation.
    Early on Honduras stands up to the imperial decree of the Dark Empire.
    Even Iraq shows signs of standing while the Imperial Army is within their borders.
    Only Israel chooses to be a nation of slaves.
    Iraq tells US not to interfere in internal political affairs
    Iraq on Saturday told the United States that interference in the war-torn country’s national reconciliation process would complicate rather than help resolve such matters.

  • Bradford Stephen Kyle-Houston,Texas 07/06/2009 at 9:29

    Israel does indeed need to finally become a free country instead of the evil mixed economy it is. The way has been clearly marked by another Jewish lady – an ex-patriot like yourself, but from Russia – Ayn Rand. Everyone there should begin with Atlas Shrugged – the most important novel that has ever been written.

  • boxer 11/15/2009 at 15:05

    I agree with Bradford, Israel does need to finally become a free country.


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