Defend the Jewish Democratic state

The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It renders Israel a judicial despotism.

Dr. Aviel Sheyin-Stevens,

OpEds Aviel Sheyin -Stevens
Aviel Sheyin -Stevens
Credit: INN:AS

On May 25, 2016, Yisrael Beytenu formally joined the government of Prime Minister Binyamin Netanyahu. This could give the government long term stability, and enable it to fulfill what it was elected to do: Defend the democratic Jewish state.

After the Oslo Accords, many left-wing Israelis believe that Israel should no longer be a democratic Jewish state, but should rather focus on its democratic aspects over its Jewish characteristics, adopting the Palestinian narrative of demonizing and delegitimizing Israel and Zionism, including "dispossession" as central to the creation of the State of Israel.

They claim that Zionism has fulfilled its ideological mission with the creation of the State of Israel in 1948, and that Zionist ideology should therefore be considered at an end. They reject the notion of Israel as a democratic Jewish state. They advocate the evolution of Israel into a secular, liberal democratic state, to be officially neither Jewish nor Arab in character, and be non-ideological, by which they intimate socialism.

Israeli voters have rejected this post-Zionist and socialist position over several election cycles; however, the Supreme Court has been imposing it on the country through its dominance of every aspect of governance and legislation.

In March 2016, Israeli Supreme Court struck down Netanyahu’s landmark natural gas policy, ruling that if the Knesset does not fix certain issues in the outline in one year’s time, it would be formally dismissed. The policy was to be the basis for developing the massive offshore Leviathan gas field, and anchor future gas prices to ensure gas revenues for the government and energy security for the country.

The government had negotiated deals to supply natural gas to Egypt, Turkey and Jordan on the basis of the policy outline. Netanyahu told the justices that approving the gas deals now over the objections of radical NGOs would benefit Israel's economy and security. It would also benefit Israel's position in the Middle East, as it would enable Israel to sell natural gas to potential clients such as Cyprus and Greece that could instead buy it from enemies of Israel.


Justice Minister Ayelet Shaked, in her speech at the Israel Bar Association conference in April 2016, criticized Supreme Court's rulings, particularly its treatment of the gas outline. She said, “The decision to cancel the gas outline could turn out to cost billions of shekels...more than the great economic damage, the Supreme Court's decision turned the court into an arena for arbitrating political questions that are supposed to be decided in the voting booth.” She added, “We have reached an absurd situation in which NGOs and Knesset members are the ones petitioning against the gas outline. Instead of dealing with it in the Knesset, they do so through the justice system.” Now, the government has sufficient support to bar the court from becoming an arena for political questions.

In most democracies, the court would never have agreed to adjudicate the petition against the government’s natural gas policy submitted by a consortium of radical NGOs.

Under normal rules of standing that apply in every advanced democracy, the petitioners would have had no right to submit their petition.


It is the norm in democracies that the government, as the people’s elected representative, has the sole prerogative to determine the country’s policy and sign the nation’s deals with foreign governments and investors.

In Israel, justices have radical pedigree and have engineered a situation where they appoint themselves and do as they like. The Supreme Court gives standing to whomever it wants, allowing claimants to file directly with the court. It routinely hears petitions by all and sundry seeking to harass the government by challenging its action, without any direct or imminent relation to the matter. Thus, the court permitted a group of unelected radicals to petition to destroy Israel’s energy sector, and caused the loss of hundreds of billions of shekels in future revenue through its arbitrary decree.


This is what passes for the rule of law in Israel: arbitrary decrees by unelected officials.
This is what passes for the rule of law in Israel: arbitrary decrees by unelected officials.

In April 2016, Israel Police Commissioner Roni Alsheikh decided to renew the ban on Members of Knesset from visiting the Temple Mount in Jerusalem until further notice. This ban on MK visits to the Temple Mount has been in place for the previous six months, during the wave of Palestinian terrorism that was in part fueled by false "Al-Aqsa is in danger" claims. The ban stems from the premise of Palestinian leader Mahmoud Abbas that it is wrong for Jews to exercise their right to visit Judaism’s holiest site.

It is not the norm in democracies for unelected officials to ban members of the national legislature from visiting any part of the nation's sovereign territory. In Israel, an unelected Police Commissioner can issue a decree to ban MKs from the Temple Mount.

The day before the Supreme Court took control of Israel’s economy and foreign relations, Attorney General Avichai Mandelblit determined that ministers do not have the right to decide how to spend their budgets.

In 2015, Culture and Sports Minister Miri Regev wanted to stop government funding of the Almidan Theater in Haifa after the theater decided to stage a play based on the writings of a terrorist serving a life sentence for kidnapping and murdering IDF soldier Moshe Tamam in 1984. The play glorifies terrorism and portrays the life of a terrorist in Israeli prison.

The theater petitioned the court to force Regev to reinstate its public funding. Mandelblit decided that Regev's action could not be upheld in court and forced her to reach a deal with the theater to reinstate its public funding. That was essentially an arbitrary decree from the unelected attorney general. As a surrogate for the Supreme Court, Mandelblit resolved that ministers lack the authority to run their ministries. Ministers have been acting accordingly.

In an April 2016 cabinet discussion, Interior Minister Aryeh Deri said that he intended to take action in view of a petition before the Supreme Court that calls for granting Israeli citizenship to some 2,000 Palestinians with uncertain status. They are Palestinian residents of The Territories married to Israeli Arabs, and are seeking Israeli citizenship on the grounds of "family reunification."


The Knesset passed the Family Reunification Law in 2003 to prevent Palestinians from The Territories or the Gaza Strip from obtaining Israeli citizenship. Out of fear of the Supreme Court, Deri decided to change the policy underpinning the law and grant Israeli ID cards to the Palestinians. This could grant them Israeli citizenship and accompanying benefits contrary to the expressed intent of the Knesset, as indicated by the law.

Netanyahu criticized the Supreme Court after Deri made it clear that there was no alternative than to change the policy and grant Israeli ID cards to the Palestinians. Netanyahu expressed dissatisfaction that a decision had been made on the issue out of fear of how the Supreme Court would rule: "If they want us to pass a law to do anything, we'll pass a law…Israel is more liberal than Sweden and Denmark. There they are taking more aggressive steps against immigration, and no one is getting upset over it."


The 2015 coalition agreement between Likud and United Torah Judaism called for a Basic Law amendment in which the Supreme Court shall be unable to cancel a law passed by the Knesset without a majority of eight out of its 15 justices. This could limit the court’s radical, post-Zionist and socialist activism. If a law is canceled by the Supreme Court and then re-approved by a majority of 61 MKs, the Supreme Court should not be able to cancel it again until after the end of the term of the Knesset. If a law that has thus been canceled by the Supreme Court and re-approved by the Knesset is ratified again by a succeeding Knesset, the Supreme Court should never be able to cancel it. A law re-ratified in a new Knesset should be valid with no limitations of time.

The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, everything is liable to trial, makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It renders Israel a judicial despotism.


Law should govern a nation, as opposed to arbitrary decisions of individual government officials. For the moment, though, there is only power; the people that have it, and the things they do with it. Now that Yisrael Beytenu has joined the coalition, the government should ensure that elected officials have the power to determine public policy.


Since power tends to corrupt, democracies limit the powers of elected officials.
The most important limit on their power is their need to stand for election on a regular basis. Voters can replace an elected official with another if an incumbent fails to meet their expectations. Power also corrupts appointed officials just as much as it corrupts elected ones; however, voters have no similar authority over unelected officials who fail them. The public did not appoint them, and they owe it no account for their behavior.

In a democracy, key government officials stand for election at relatively short intervals and thus are accountable to the people. A judiciary that is free to override the decisions of those officials, or supports others in overriding them, is anti-democratic and usurpative.

Since Barak’s judicial coup d'état, Israel’s governing bureaucracy has orchestrated a state where judges are only accountable to other judges, prosecutors are only accountable to other prosecutors, and the attorney general is accountable to no one.

There is a way to stop this judicial despotism: subordinate unelected officials to elected officials.

The Knesset should overhaul the selection process of unelected officials and make them accountable to elected officials. The Knesset should wield the power to approve or reject the appointment of all high ranking unelected officials, and the power to impeach them.

If the courts were accountable to the legislature, a supermajority of the Knesset could impeach errant judges. If appointed officials were accountable to the government, then the justice minister could have fired Attorney General Mandelblit for failing to defend Regev before the Supreme Court; the public security minister could order the Police Commissioner to rescind the ban on MKs, or simply fire him.


Most importantly, if politicians fail to keep unelected officials in line the public could punish the politicians for their actions by electing others to do the job.

The Knesset should determine the matters that courts are empowered to consider, and the disputes that they have the authority to resolve. They should not be policy upon vital matters affecting the nation, such that by their nature should be decided by the political (legislative and executive) branches of the government: budget and governmental spending, defense matters, economic policy, foreign policy, public policy, the making of treaty, the making of war, etc. As Abraham Lincoln stated, “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.”

Israel was established to be the state of the Jewish people in accordance with the Declaration of Independence: a Jewish state, located in the ancient Jewish homeland.

The Knesset should defend its authority as the elected representative of the people to express their will via legislation, thereby defending the democratic Jewish state where minorities live with equal rights.

Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.




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