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Israel's democratic challenge
Jul. 2, 2009
Caroline Glick , THE JERUSALEM POST
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, noneconomic 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.