Opponents of the Service Deferral Law, on the other hand, could not hide their glee.
"An historic decision," said [Tzruya] Medad-Luzon, of the Movement for Quality Government in Israel. She told DPA that she hoped parliament would now "really invest effort and thought" into a more balanced law.
Israel’s Supreme Court is the body that provides checks and balances to the country’s executive and legislative powers, upholding constitutional standards...
¶ In the four decades since the 1967 Six-Day War between Israel and its Arab neighbors, the court has become a stage for an escalating conflict between two very different world views.
¶ Israel is the only modern state that has held territories under military occupation for over four decades. It is also unusual for a nation to allow residents of territories under a military occupation to petition its Supreme Court and request intervention in acts of state.
¶ Since the early years of the occupation...[rather] than functioning as the bastion of human rights that it was established to be, it has instead become the entity responsible for balancing the needs of a state engaged in a prolonged occupation with basic principles of democracy.
¶ This Op-Doc expands on one of the themes explored in my new feature documentary, “The Law in These Parts,” and asks about the role of the Supreme Court in the legal underpinnings of the longest military occupation in modern times.
RA is being petulantly picayune writing: "Israel is the only modern state that has held territories under military occupation for over four decade". Really?
Consider:
Morocco’s occupation of Western Sahara has “only” lasted three plus decades. Turkey’s occupation of Northern Cyprus – a mere 37 years. But Russia’s occupation of the Kuril Islands began in August 1945…
And Tibet has been occupied by China since 1949.
And many consider Northern Ireland occupied, even after the 1998 arrangements of an Executive.
But I suggest the term is "belligerent occupation", resulting from an Arab war of aggression in 1967 and by acting in defense, not only does Israel have the right to retain all or most of the territories it now administers, but as Schweible, Rostow and other international law experts claim, Israel has a better right than anyone to remain there in Judea and Samaria based on, at the least, discussions, declarations and decisions of Balfour 1917, the Versailles Peace Conference of 1919, the San Remo Conference of 1920 and the League of Nations 1922.
And isn't it amazing that none of this legalese was ever voiced when those territories were invaded by, illegally occupied by and illegally annexed to Jordan all through 1948-1967?
The constant Arab argument which has also been seized upon by Western liberals posits that the Jews are not a nation, but a religion. Hence a religious grouping is not entitled to its own state. Those who espouse this view claim that it is the Palestinians who qualify as a nation.
What clever logic.
Creating a nexus between the tribes of Gaza, Hebron, Nablus, and the Galilee so as to form a national grouping is akin to the British colonialist practice of carving out artificial states like Iraq by lumping together the Kurds, Sunnis, and Shiites, or the French colonialist project that gave birth to the Syrian state inhabited by Druze, Alawites, Sunnis, and others. Due to the emasculating effects of political correctness, we have refrained from discussing the issue, instead preferring to emphasize the security arguments. This twisted state of affairs has contaminated the toothless diplomatic and political discourse.
The court metamorphosed into an arbiter of moral dilemmas that lie at the heart of the cultural and political discourse in Israel. Slowly but surely, the assumption that elected officials were unfit to make key decisions on burning issues on the agenda gained significant traction. As a result, the belief was that these officials did not need checks and balances, but a guiding hand.
This state of affairs alarmed retired Supreme Court President Moshe Landau, one of the founding fathers of Israeli jurisprudence. Landau watched with dismay as his handiwork was being tossed aside into the abyss. In an interview with journalist Ari Shavit in 2000, he said: “I think that [Supreme Court] President Aharon Barak does not reconcile with and has not reconciled with the proper place that the court needs to assume between our branches of government.” When asked whether Barak’s goal was to impose legal authority over every aspect of our lives, Landau replied: “Not to impose legal authority, but to impose certain moral values as seen fit by him. And this is a sort of judicial dictatorship that doesn’t seem proper to me at all.” In the same interview, Landau added that he noticed a tendency by Barak to concentrate “authoritative power” over the branch which he helmed, “and this, in my view, is not right. It leads to a dead end. Because the court is treading into water that is too deep, a challenging swamp of opinions and political beliefs, and this is dangerous both to the state and to the court. It’s dangerous to the state because it exacerbates the social fissures, and it is dangerous to the court because this is how the court loses its fundamental role upon which its standing is predicated: the belief in the neutrality of the legal system as it relates to public disputes.”
In response to a question from Shavit about his concerns for the future of the court, Landau had this to say: "I belong to the first generations that founded the judicial system in Israel. You could say I'm one of the 'dinosaurs.' And this system is very precious to me. I love it and believe in it. But here, too, things have reached the crisis point. And, today, I truly fear for the proper future of the legal system. Because it is being led in a way that, sooner or later, will surely cause the court's public standing to be diminished. Already there are entire sectors of the public that truly despise the Supreme Court. And this process undermines the integrity of the judicial authority."
...the access points [to be provided] wouldn't help because only landowners, and not farmhands, would be allowed through. "This is the kind of thing that comes from Israeli courts," Qumsiyeh said. "They usually try to find some sort of compromise, so to speak, but the end result is that the military establishment has the final word."
It looks like the decades-long standoff between the Congress and the President over the question of Jerusalem may finally be brought to a head, in a lawsuit brought against the Secretary of State of the United States by — only in America —a nine-year-old boy. The Supreme Court last week brushed aside the objections of Mrs. Clinton, who is worried that Congress may win a say in the Jerusalem question, and agreed to the appeal of the child...The State Department is required to accede to such a request, according to a law, part of the Foreign Relations Authorization Act, passed by Congress in 2002. But when President George W. Bush affixed his signature to the law, he issued a so-called signing statement objecting to that requirement, saying it infringed on his constitutional prerogatives as president. President Obama seems to be taking the same position, as Mrs. Clinton is refusing to carry out the law, even though she was in the Senate when it passed the world’s greatest deliberative body by unanimous consent. It has to be the first time a high-level Democrat is supporting Mr. Bush on one of the signing statements they accused him of using too often.
...the lawyer for Master Zivotofsky, Nathan Lewin...(does) suggest...that the Congress has enough power to write the rules for issuing certificates of birth abroad and to require the government to accede to parents’ wishes on the matter.
The justices of the Supreme Court, in their order saying they’d take the case, signaled that they see the standoff between the Congress and the presidency as a central issue...[the justices instructed] the lawyers to focus on whether the law “impermissibly infringes the President’s power to recognize foreign sovereigns.” The power to which the Court refers stems from language in Article II of the Constitution...
...it strikes us that the Supreme Court has the opportunity here use the plea of a child to remind us that we are a nation of laws not of men.
There is a flip side to this coin: at present State Dept. regulations instruct, as a first choice, that a child of an American citzen born outside of the Green Line but within the area currently administered by Israel, - for example, a Jewish woman in Shiloh or Efrat or an Arab woman in Ramallah or Bil'in - shall have his birth place registered as "_____, West Bank" (only if the parents object, then just the city will be noted, like in the case of Jerusalem).
In other words, State Dept. clerks have created a 'state' called the West Bank but refuse to recognize Israel viv a vis Jerusalem even though, it should be recalled, the geographical terms "Judea" and "Samaria" appear in the UN's 181 decision in the section delineating the borders. Why not Shiloh, Samaria or Bethlehem, Judea?
Obviously it is not law involved but diplomacy and political policy and despite my lack of professional constitutional law grounding, I would suggest that law (Congress) aslways takes primacy over policy (State Dept.).
Former Israeli Prime Minister Menachem Begin used to warn against deciding the political status of Jerusalem in the U.S. Congress. But what about at the Supreme Court? It's a pressing question because America's highest court might soon rule on whether, under American law, Jerusalem is or is not part of Israel.
...What makes the case so explosive is not only that it involves the question of Jerusalem, but that it also pits the executive branch against the Congress. In agreeing to hear the case, the court specifically ordered the lawyers to focus on whether the law "impermissibly infringes the President's power to recognize foreign sovereigns." The case also involves presidential signing statements. Can a president, in signing a piece of legislation, announce that he doesn't agree with part of it and doesn't intend to enforce the law? The relevant law is the part of the Foreign Relations Authorization Act of 2002 that deals with "United States policy with respect to Jerusalem as the capital of Israel." The Supreme Court will adjudicate the provision stating that, for "purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."
The bill passed the Senate, of which Mrs. Clinton was then a member, by unanimous consent. In other words, she's now refusing to carry out a law she helped pass.
...So far, lower courts have agreed with Mrs. Clinton that this matter is a "political question" and not justiciable. But the young Mr. Zivotofsky's lawyer, Nathan Lewin, was able to convince the Supreme Court to hear the case by arguing, in part, that this matter is no longer a "political question" precisely because Congress has already acted. Given all the other foreign affairs and political disputes in which Congress does act—from foreign aid to the United Nations to the Senate's ratification of treaties—it's illogical to suggest that the terms for issuing certificates of birth abroad are beyond the reach of the elected legislature.
The Supreme Court overturned Sunday a Tel Aviv District Court decision that had restored party activist Moshe Feiglin and former MKs Michael Ratzon and Ehud Yatom to their previous places on the Likud list. The three were originally demoted by Likud's election committee two weeks ago.
In its ruling, the court accepted the Likud election committee's appeal to retain Feiglin in the borderline 36th slot.
In response to the action of the Likud Elections committee that bumped me from the 20th to the 36th spot on the Likud Knesset list, I have received numerous phone calls from attorneys urging me to appeal to the Israeli Supreme Court. They assure me that the committee does not have a legal leg to stand on, and that I will surely win the case. But I am not going to appeal to the court.
...I have already announced time and again that I have no faith in the current court system. If I would now enter the Knesset due to a court decision, I would not be standing up for my convictions. If the Supreme Court rejected my appeal, I would not be able to complain; after all, I was the one who appealed to the court. And if the Supreme Court ruled in my favor, I would not be able to work to replace it - because I would already have recognized the "justice" of the court...
Israel’s Supreme Court has a long tradition of independence. But over the past two decades, largely under the influence of Mr. Barak, 71, it took the ideal of enlightened liberality to new heights. It abolished the principle of standing, meaning that petitioners need not have a direct stake in the outcome of a case they bring. This opened the court up to civil rights groups and a flood of public petitions. Because of a historic anomaly dating from the British Mandate, petitioners appeal directly to the Supreme Court, without the filter of a lower court.
The Supreme Court also broadened the rules to the point where practically every government decision is open to review.
In 1995, Mr. Barak declared what amounted to a constitutional revolution, ruling that the country’s basic laws, the set of laws outlining Israel’s structure and values, had an elevated status compared with ordinary legislation, almost like a constitution. And deriving from principles in two basic laws on human rights enacted in 1992, Mr. Barak granted the Supreme Court the authority to invalidate parliamentary legislation that contradicted the basic laws.
The Supreme Court has used these powers very sparingly. Still, Mr. Friedmann wants them curbed.
His allies include legislators as well as other sectors of Israeli society who want to see the legal establishment restrained, among them politicians and business figures who have been investigated or indicted, and the religious and nationalist camps, which eschew the Supreme Court’s liberal approach.
American conservatives have also weighed in. Robert H. Bork, a key theorist of the American legal right, has complained that Mr. Barak’s ideas are “a textbook for judicial activists” and that Mr. Barak has established “a world record for judicial hubris.” Richard A. Posner, a senior American appeals court judge, called Mr. Barak “a legal buccaneer.” Mr. Friedmann’s critics say it is he who presents a threat to the delicate fabric of Israeli democracy.
Arye Carmon, president of the Israel Democracy Institute, an independent research institute in Jerusalem, agrees that Mr. Barak’s moves give the court undue influence over the political process. But he says that Mr. Friedmann presents “a danger to the stability of the relationship between the authorities,” which is “already shaky enough.”
Mr. Friedmann denounces Supreme Court intervention in security and budgetary issues and the appointment of ministers and other officials...“I find this unacceptable,” Mr. Friedmann said. “If the court acts this way, they make themselves superprosecutors. To me it is almost inconceivable that they should decide on the charge to be brought.”
Mr. Friedmann wants to change the composition of the judicial appointments committee, in order to reduce the influence of Supreme Court justices on the appointment process and make it less of a closed club.
He also opposes the custom of appointing the chief justice on the basis of seniority.
"The Supreme Court is very monolithic. Anyone who dares to level the slightest criticism at it is immediately transformed into a public enemy and is seen as a danger to human rights. I'm not the only one who is being delegitimized, although the criticism I get is arguably more acrimonious," said the minister.
In regard to his intention to dispense with two of the three justices presiding on the judges' selection committee, Friedmann said he is adamant about "stopping the Supreme Court from duplicating itself." He added that he would not insist on replacing the two justices with retired district court judges. "They can be public figures from other spheres," he said.
The Government of Israel is considering an indecent assault on its Supreme Court
The relationship between the Government and the judiciary is tense. The new Minister of Justice is refusing to protect the interests of judges. The independence of the courts is under threat...These are judges who take seriously the verse from Psalms that is one of the inspirations for the design of the Supreme Court building: “Truth will spring up from the earth and justice will be reflected from the heavens.” The judges do not always get it right – they are human beings – but even fierce critics of the state of Israel have to recognise that its courts take seriously the need to protect the rule of law.
...Tension between judges and politicians is a feature of all free societies. Indeed, if politicians are not regularly irritated by judicial decisions, the courts are not doing their job properly. But three aspects of the difficulties are very striking. First, Professor Friedmann is the first Israeli Justice Minister who has seen it as his role to lead an attack on the judiciary, rather than calm down his ministerial colleagues and explain to them the virtues of judicial independence as the protection they and their supporters will enjoy when they are out of office.
Secondly, experienced observers are concerned that judicial independence is being threatened...Thirdly, those of us on the delegation (judges, practising lawyers and academics) found it extraordinary that Israel should even be thinking about clipping the wings of the Supreme Court at a time when the rest of the developed world is recognising the need to strengthen judicial independence as fundamental to a free society.
...Professor Friedmann should stop his indecent assault on the Supreme Court of Israel.
Court prevents groups from sacrificing live animals at Temple Mount
...The activists, who belong to various religious circles such as the Temple Mount and Land of Israel Faithful Movement, also petitioned the High Court of Justice for the right to perform the ritual.
Their plans were thwarted on Sunday when the court rejected their request, ruling that "the rights of the petitioners to practice their faith are outweighed by other considerations such as public order and safety."
Despite the ruling, the followers decided to hold a colorful procession on Sunday in Jerusalem, heading to the Western Wall along with two sheep.
The Temple Mount Movement followers present were joined by partners from the Temple Institute, which has for years prepared the traditional holy tools and utensils for the Third Temple, according to Torah specifications.
The spectacular display did not, however, persuade authorities to allow the participants to perform the practice.
Their petition to the court was by no means the first one. In recent years, the High Court of Justice rejected several such petitions filed by the Temple Mount Movement and other associations, dedicated to erecting the Third Temple on the Temple Mount in Jerusalem. The court invariably cited the same reasons for its ruling.
JUSTICE SCALIA: So there's no standing to challenge a presidential directive which says we are going to buy bagels for all evangelistic Christian breakfasts. (Laughter.)
JUSTICE SCALIA: Okay? But not for any --
MR. PINCUS: No, I think there would be standing.
JUSTICE SCALIA: Why would there be standing?
MR. PINCUS: Because there the challenge is to the discriminatory purchase. It's not about the prayer breakfast, it's about the idea that the Government is purchasing bagels in a religiously discriminatory way.
CHIEF JUSTICE ROBERTS: Of course. But the point is that makes --
MR. PINCUS: So there absolutely would be standing.
CHIEF JUSTICE ROBERTS: But that shows how totally manipulable your incidental test is. You just have to phrase your claim so that it covers 53 Alderson Reporting Company whatever expenditure --
MR. PINCUS: But, Your Honor --
CHIEF JUSTICE ROBERTS: -- is offending you. It's not -- incidental doesn't protect you from frivolous or insignificant claims in any way.
MR. PINCUS: Your Honor, I think it does, because there would have to be an allegation in that situation that bagels were being purchased on a religious basis, and that's going to be awfully hard for a lawyer to sign in good faith. I think the problem, if I may --
JUSTICE SCALIA: How does that confer standing? How does that confer standing?
MR. PINCUS: The purchase -- the idea that bagels are being purchased only for evangelicals and not for Jewish breakfasts?
JUSTICE SCALIA: Right. Right.
MR. PINCUS: Because the Government --
JUSTICE SCALIA: Standing by Joe Doaks, not from somebody who's starting a Jewish prayer breakfast and says, you know, what could be worse than not buying bagels for a Jewish prayer breakfast. (Laughter.) With him I could understand, he has standing...
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