You would not envy the position of Israeli Prime Minister, Ehud Olmert. He did not have a snowball’s chance in hell. Every day the newspapers and the TV channels broadcast new accusations against him and announced fresh police investigations. Often the Israeli viewer learned of Olmert’s alleged misdeeds before the Prime Minister himself did. Police did not just leak the details of the case – they poured it out like tropical torrent. Charges landed all over Olmert like the bomblets he dropped on hapless Lebanon: small but plentiful.
The charges were petty, at best. They are summed up here. You and I have probably done similar things. Olmert was accused of charging two different organizations for the same expenses, of accepting some contributions in cash, of flying with his family to a trip abroad while not strictly observing the difference between his funds and those of contributors. Probably the Biblical injunction “Don’t muzzle the ox while he is threshing” (Deut 25:4) covers the case. But the police went after him, the Supreme Court began deliberations on private actions against Olmert, while newspapers and the TV blew it out of proportion. Thus two mighty powers of Israeli politics, the media and the legal system, united in one effort to unseat Olmert, and he caved in.
This episode may demonstrate who actually runs Israel. Though media amplifies, the judges judge. The Hidden Hand that unseated Olmert was that of the Supreme Court and its power-hungry President, Chief Justice Dorit Beinish. Beinish and her bosom friend Justice Arbel activated police and prosecution, while their special storm-troops, the fighting sorority of lesbian activists straight out of Barb Wire organised mass demonstration and intimidated the opposition. The reasons had nothing to do with Olmert’s alleged corruption or with his real failure in the 2006 Lebanon War, but were grounded in the power struggle between the weak elected government and the unassailable judges. Moreover, Olmert makes the third recent, high-placed victim of the Supreme Court’s drive to supreme power.
The Supreme Court of Israel is self-elected and self-perpetuated, like the Sanhedrin of old. Formally, the new judges are appointed by the President, who confirms the decisions of a committee led by the Justice Minister; factually the sages elect the new sages from amongst their apprentices (“interim appointees”) and close colleagues. This system is called in Hebrew ‘haver mevi haver’, ‘a friend brings a friend’. After twenty years of the system’s strict application, the Supreme Court is a monolithic and highly influential body.
The Court is closely and personally connected with other legal authorities, with the attorney general office, the state prosecutor office, the police and the secret police. State prosecutors and attorney generals dream of joining the Court after leaving their jobs. Police bosses take the Court orders as if they were sent down from heaven. The Court is the top of the legal pyramid, and its president can manoeuvre and manipulate the whole system formally and informally. Under the flag of judicial activism, the Supreme Court has assumed control of the state, leaving Parliament and the existing government high and dry. The judges have assumed powers any dictator would envy: they can nullify any law; they can prosecute any MP or minister, they can block any government action or agreement. They rule whether the state has to build shelters for border towns, whether an army commander made a right tactical decision, whether a law can remain on the books and whether prisoners may be swapped.
Incidentally, these powers have no legal basis. The American professor of law Richard Posner noted that the Israeli judges abrogated these powers to themselves “without benefit of a constitutional or legislative provision. One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.”
The man who took the crown of Israel and placed on his head was not Arik Sharon. It was the previous Chief Justice Aharon Barak, the most powerful man of Israeli politics. Posner called Barak “Enlightened despot … who created a degree of judicial power undreamed of even by the most aggressive [American] Supreme Court justices”. After he retired, sycophantic slime spewed forth from printed and electronic media alike. Barak had had to retire having reached the mandatory age, but he remained very much a moving force behind the scenes.
His succession by the highly ambitious Dorit Beinish brought the conflict between the Judicial and Executive branches to the fore. A tug-of-war ensued, with the government trying to cut the Supreme Court down to its natural size, and with the Supreme Court fighting for the top slot. Both sides wished to keep the struggle under the carpet, far away from the eyes of hoi polloi.
The wars of succession were concentrated around the Judges’ Nominations Committee, which is chaired by the Minister of Justice who is appointed by the prime minister, while the actual appointment of judges is done by the Israel’s president. Surely this was sheer coincidence that all three of these persons were politically assassinated!
In 2006, Minister of Justice Haim Ramon objected to the nomination of Dorit Beinish to the top post of chief justice. He also planned to break with the unwritten tradition of appointing to the Supreme Court only those interim candidates who had been invited there by the Supreme Court to serve on a temporary basis, and instead to bring in an outsider, a lawyer or a judge not vetted by Beinish.
Ramon was treading on a live wire, and the response was fierce. Within a month, Ramon was under investigation for sexual harassment; in July 2006 he was forbidden to appoint judges, and in January 2007 he was convicted.
The story went as follows. A soldier girl came to visit the Justice Minister Ramon; she looked at him with adoring eyes and asked to be photographed with him. Eventually Ramon kissed the girl who later claimed she had expected a kiss, but rather a fatherly and less fervent kiss than the one she got. The girl went away, expressed her dissatisfaction with the French kiss, and flew away to Latin America. A senior police officer flew to Latin America, located the girl and literally forced her to file a criminal complaint. The police woman in charge of the investigation admitted at the hearing that she had threatened the girl with prosecution unless she stuck to her complaint.
The newspapers and TV discussed the details of the case but practically nobody (but a few bloggers) dared to ask who had ordered Ramon’s head. It took an American Jewish journalist to break with the vow of silence and connect this “targeted judicial assassination” with the struggle for Court primacy. Halpern wrote in the Forward: “Many suggest that the judges and the attorney general had it in for Ramon because he opposed the appointment of Judge Dorit Beinish as chief justice of the Supreme Court. His trial prevented him from appointing someone else, while his conviction prevented him from making changes to the judicial system later. “
Meanwhile, the President of Israel, Moshe Katsav, the man who actually appoints judges, came under fire. He was also against Beinish’s rise to Fuhrership, and paid for it dearly.
A girl in his office codenamed “A” complained of sexual harassment. It appeared in the course of investigation, that she was lying. She had actually carried an affair with the President and had tried to blackmail him. Her lies were so obvious that the prosecution had to drop her, but meanwhile, the media had a field day, or rather a field month. The media harassment sparked many complainants; apparently every woman who ever worked with Katsav came forward to try her luck, and a few of the accusations could possibly stick. There were daily demonstrations by the angry feminists, the fighting sorority of Beinish and Arbel, demanding Katsav’s balls, or at least his resignation. In August 2006, he was forbidden to appoint judges, just a few days after Ramon’s resignation. If that was not enough, on September 7, 2006 the Israeli Police declared they have the evidentiary basis for an indictment.
On that day, the Judges’ Election Committee approved the succession of Dorit Beinisch to the presidency of the Supreme Court. Katsav refrained from attending, “to prevent dispute”. He also stayed away from Beinisch’s formal swearing-in ceremony, normally held in the presidential compound, now to be held in the Knesset, so she was sworn-in by another woman, the Knesset speaker.
Katsav agreed to be charged with indecent behaviour, then later changed his mind, but still had to resign and vacate the position to Shimon Peres, a smooth man very much to Beinish’ liking.
Olmert understood that not only his own career, but the very position of the legitimate government was being undermined. He harboured these heretical thoughts for a long time. In 2002, the fighting sorority attacked another male Oriental politician, Minister of Internal Security Avigdor Kahalani. Edna Arbel, then state prosecutor, indicted him and brought him to trial, but he was acquitted. Ehud Olmert, then mayor of Jerusalem, called upon Arbel to resign and said that she lacked the professional judgment to continue in her senior position. State Attorney General Elyakim Rubinstein defended Arbel in his response to Olmert’s comments. Since then, Rubinstein has been rewarded with a seat in the Court, while Olmert has gained an enemy not to be trifled with.
Olmert went on the warpath by returning Ramon to his cabinet in a senior position (though not to the post of Justice Minister) and by hiring a new justice minister, Professor Daniel Friedmann, the very man who was most vocal in his objection to the rule by the Supreme Court. Friedmann made a two-pronged attack, by bringing into the Supreme Court the first external nominee and by proposing to limit the Supreme Court agenda by a law that would restrict the Supreme Court from ruling on political, security and budget matters. He was immediately attacked by the retired justices of the Supreme Court, especially by the former president of the Supreme Court Aharon Barak and his ex-deputy Mishael Cheshin, the very men who had established the present system, enthroned Dorit Beinish and kept advising her. While acting judges are precluded from speaking ex-cathedra, it is a moot point with the retired ones: they bear the title of Justice and they draw their Judge’s pension, but they certainly speak out all the time. They went to the Knesset, to newspapers and to TV channels and described Friedmann’s actions as a “putsch”.
They pled with Olmert to fire Friedmann and let the things go as usual. But Olmert wanted to return executive power to the government, to the elected legitimate body from the self-appointed usurpers. He stuck to his guns. Ehud Barak, the Labour leader and a minister in Olmert’s government, threatened Olmert with his resignation and the possible fall of government unless he fired Friedmann; but the unrelenting Olmert refused to bend and said he’d rather let Barak go than part with Friedmann.
And then they attacked Olmert personally. They found an American Jew Morris Talansky who claimed he had squeezed crumpled dollar notes into Olmert’s sweaty palm. In the course of interrogation it appeared that the man used to boast that he gave money to every Israeli PM, including Yitzhak Rabin, the very paragon of honesty. He had also threatened to bomb some Rabbis who did not want to pay him. The trustworthiness of his claims was severely undermined. But Olmert’s enemies did not stop: every day they produced a new complainant, a new accusation of corruption. If it was parried, they made a new one. With the police and the Attorney General at their disposal, their resources were practically unlimited.
Meanwhile, the retired justices were outspoken. They demanded Olmert’s resignation, completely forgetting the “innocent until found guilty” rule; just as they had in the related cases of Katsav and Ramon. Dalia Dorner, a retired justice, declared: “Olmert must resign. The public opinion should force him to resign.” But public opinion remained unconvinced despite the relentless spin, and Dorner bewailed Israeli simplicity of mind: “There is no public culture of politics in Israel, and people pay no attention to reports about misbehaving leaders”.
In the end, Olmert resigned to the supreme force of the Supreme Court. Was this a victory of Law over arbitrary and corrupt politicians? Do not be so sure.
One may like or dislike Ehud Olmert, but he was elected by the people to do his job. We elected Olmert. One may be happy or unhappy about this result, but one should respect the decision of the majority. We did elect Olmert, Katsav and Ramon, and we did not elect Mrs Beinish and her fighting sorority, though she thinks she knows what we need better than we do. In a democracy, one should respect the people’s decision. A prime minister should rule the country, a hard enough job, instead of spending his time answering questions by the police.
Olmert has been neutralised as prime minister, because nobody is yet able to survive a media cum judiciary assault. Apparently, Israel may need a Berlusconi Law protecting its executive from police investigations and legal actions. Police investigation about whether Ehud Olmert took his wife along at government expense can wait until he completes his tour of duty.
But the problem lies deeper; the choice is whether we want democracy, or the rule of law. These two regimes are not identical, – they stand in direct opposition. In a democracy, the people rule via their elected representatives; under the rule of law, the sages (or Judges) rule supreme. Now Israeli democracy faces a serious challenge, more serious than Altalena crisis: unless we stop the police and the Court from meddling in politics, democracy will be lost.
A short detour is required. Of old, there were three branches of government, or ‘powers’: the Legislative, the Executive and the Judicial, as described by Montesquieu and as established by the US constitution in the 18th century. The 20th century ushered in a fourth power, Media.
The Legislative, in our case, the Knesset, is a democratic body, despite its limitations. The Executive is also elected – by the Knesset and is responsible to the Knesset.
But the Judicial power, i.e. the Court is not elected. It is a self-appointed and self-perpetuating oligarchy equipped with a vast apparatus which intervenes in matters of war and peace, labour, education, family life and even in questions of faith. This is, let us put it charitably, a Platonic rule by Sages. Yes there is the Law, but they interpret it as they see fit. They may nullify a law, or reinterpret it in an entirely different vein. Jewish history had a go at it, too, when the sages of Talmud reinterpreted the Written Law. The Rule of Halacha was actually rule by sages, and only the Enlightenment broke its iron grip. Now we have reverted all the way back to the Sanhedrin, this traditional (for Jews) but not very successful, non-democratic system of rule by Wise Elders.
This was noticed by the American law professor Robert Bork, who wrote: “[Aharon Barak’s rule of law… is in fact … the rule of judges, a trend to which he himself is the major contributor. Perhaps [Barak] believes that judges are simply intellectually and morally superior to other actors in the nation’s politics”.
The supporters of the Supreme Court supremacy deride the Ultra-Orthodox Jewry of Mea Shearim who accept rule by their sages, but they themselves actually want to return us all to the rule by sages, albeit sages of their own choosing. Karl Popper correctly stated that this is just another form of totalitarianism. In our case – liberal totalitarianism.
Some simple-minded people consider these judges to be “of the left”. A pro-family right-wing activist and blogger, while correctly noting the anti-family tendency of the Court, called them The Wicked Witches of the Left. One may agree or disagree with “the wicked witches”, but they certainly have nothing to do with the Left, and this blogger should have his eyesight checked. The Supreme Court sages, after twenty years of inbreeding and selection, belong to an almost pure strain of totalitarian liberals, and they indeed enforce liberalism in the worst meaning of the word:
* workers’ rights are frowned upon as an affront to humanity. Majority of Israeli workers are now employed by subcontractors on contract basis, thus eliminating benefits and social security.
* They approved of shifting the tax burden to the worker, while usurers pay no tax.
* They do not protect tenants against rent rise and allow landlords to collect rent tax-free.
* They are against children. That’s why abortions and gay marriages are welcomed; gay pride parades are approved, but life of families with children is getting increasingly difficult.
* Even their favourite topic, gender equality, does not lead to a more equal society but rather encourages young girls to join the counter-insurgency fighting units.
* They authorise torture, the kidnapping of civilians, the demolition of Palestinian homes, the confiscation of their land, and the building of settlements.
* They accept the Secret Services version of everything, sight unseen.
* They participate in the Assassination Committee, or the committee for “extra-legal executions”.
* They support the illegal Wall.
* They had no problem trying and imprisoning illegally kidnapped civilians, from Mordecai Vanunu to Marwan Barghouti.
* They undermine religion because they hate anything smacking of compassion.
If that is “Left”, then what is Right? But let us be fair, they are not Right neither Left, they are the Third Kind, totalitarian liberals. Totalitarian liberals are profoundly undemocratic, for they are forever suspicious of the Majority. They use the Minority Rights in order to undermine Majority Rule. They do not act in the interests of the minorities whose name they bear in vain: rather, they use them as a ploy for seizing supreme power. Their world-view is essentially that of Leo Strauss, the godfather of neo-cons, “a man profoundly hostile to the concept of rule by the people. He believed it was the natural right of the wise and strong to lead societies to the fulfilment of their wise aims, using subterfuge when necessary”.
Such a subterfuge is a presentation of the Court as the only defence of pro-Western, ‘civilised’ society against the onslaught of crazy religious nationalists, Kahanists and unruly settlers. Without their approval, however, not a single settlement would ever have arisen, and not a single dunam of Palestinian land would ever have been confiscated. With one hand, they allow the Wall to encroach on the Palestinian lands, with another, they pretend to defend Palestinian peasants.
* Actually, the leading judges of the Supreme Court, Beinish and Arbel, are personally responsible for the outbreak of the First Intifada. As state prosecutors, they came up with a nasty legal trick, the type a rabbi might describe as “kasher aval masriach” (“it is kosher, but it stinks”). Only a minority of Palestinian lands were parcellated and privatised, while the majority of lands were in public use and were called ‘the lands of the Sultan’. The two “liberal leftist” lady lawyers claimed that these lands belong now to the Jewish State as it is now the Sultan, and thus they allowed the State to seize Palestinian common lands and give them to the settlers. Aharon Barak authorised the snatch. This mass confiscation was the reason for the First Intifada.
* They are also responsible for the second intifada, as they permitted Ariel Sharon his march to the Temple Mount.
* They are responsible for the terror, as this was caused by their glaring injustice. When they sentenced Nahum Korman to six months of public service for the murder of a Palestinian child, they signalled to the Palestinians that they should not expect legal remedies from this Court.
* They are responsible for the Second Lebanon War, as they blocked the release of Kuntar after Israeli withdrawal from Lebanon.
* More than anyone else , they are responsible for creating the apartheid system in Israel.
We should not allow them to shift their guilt to the Executive or to the Legislative powers, i.e. to the government and to the Knesset. They interfere in the affairs of the state so often and so thoroughly that they should bear the responsibility themselves.
Still, they would not be able to seize supreme power without some important help from the Media. The Media are another non-democratic, non-elected power. In Israel, the media belong to five wealthy families; they appoint chief editors and journalists as they see fit, and they decide who are their friends and enemies, and whether they should attack Olmert or Beinish, nuke Iran or make inroads into Gaza. Being inherently non-democratic, mass media owners tend to support other non-democratic structures, be it the Armed Forces or the Supreme Court.
These two non-elected and non-democratic powers of Media and Judiciary entered into conspiracy against the elected parliament and government. In every newspaper you can read that the public despises the parliamentarians and does not trust the government. The media promote these feelings, thereby undermining the democratic powers. The police and the judiciary do all they can in order to confirm our suspicions. They leak their deliberations into the media and start a witch-hunt. As a result, the elected politicians appear as sinful, if not outright criminal, weaklings, and the very concept of democracy, of Majority Rule is undermined.
When the Judicial and Media powers allied and took control over the Executive and Legislative, they create a paradigm shift. This shift is universal, rather than local. Just recently, in Turkey, the High court decided to outlaw the ruling party; in Philippines, the High court blocked an accord that was concluded by the government and the Muslim rebels. In the US, the courts allowed for abortions and same-sex marriages, for dismantling trade unions and for social insecurity. This is the great success of totalitarian liberalism. People convinced that Supremacy of Law is a good thing should consider that this puts paid to democracy as decisively as any dictatorial coup. This leads to rule by anonymous ‘Wise Elders’, while ordinary people are excluded from decision-making.
The true Left and true Right should look at this shift with horror, for these movements have their basis in the people’s will. They seek the people’s approval; they try to attract the people to their side. Even the most far out political movements, from Fascists to Communists, still turn to the people for their mandate. Deep down, they are democratic, for they believe in Majority Rule. Now is the time for the Left and the Right to unite to regain democracy, while cutting the judges power down to their normal size.
The People never had much say in Israel: the country was run for years by one party and one army, with power smoothly shifting from a party boss to a general and back. Still, there was at least the occasional appearance of democracy, and a chance to extend the democratic base. Now, the Knesset and the Government have been made irrelevant by the Court’s powers; and the Court is outside of our influence.
Under the Court’s rule, Israel is entering the dark realm of faceless and nameless dictatorship. This is not the dictatorship we were taught to be afraid of, with the dictator riding a white stallion surrounded by outriders or speaking in a stadium to the enchanted masses. We have no portraits of the new dictators in our homes; we are not asked to adore them; it’s the other way around, we may not utter their names or even suspect that they exist. They do not run for public office, they do not ask for our opinion, but they decide what will be done.
They do not belong to the left or to the right. The Left and the Right are parliamentary terms, while they are against democracy. They undermine outstanding, personable and charismatic leaders; only petty and corrupt politicians are allowed to survive their purges, for such would never dare to fight these nameless dictators. With every generation, Israeli politicians grow smaller in moral stature, until they finally disappear in all but a name.
There is an urgent need to clean up the act of the police and the Court. They should stay away from state business and leave parliamentarians alone. They should take care of their job instead of hunting for mischief. This needed roll-back can’t be done without some left-and-right cooperation.
 It may be conceived as the rebirth of the old fourth power, the Ecclesiastic one, for Media preaches, and guides minds of people, establishing normative and forbidden behaviour, just like the Church did.