High Court rules out 30km stretch in separation fence route

[sharonbn]

High Court rules out 30km stretch in separation fence route

The High Court of Justice on Wednesday morning ordered changes to 30 kilometers of the route of the West Bank separation fence, northwest of Jerusalem, saying that everything must be done to minimize harship to Palestinians living in the area.

The landmark ruling by Chief Justice Aharon Barak and justices Eliahu Mazza and Mishael Cheshin comes in response to a petition filed in the High Court of Justice by the village council of Beit Surik, north of Mevasseret Zion.

In their ruling, the justices disallowed 30 kilometers of the 40-kilometer stretch of fence mentioned in the petition.

"The route disrupts the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants," the ruling said.

http://www.haaretz.com/hasen/spages/445720.html

[sharonbn]

yeah yeah, I know, Israeli supreme court is a bunch of back stabbin leftie appologists.
Maybe after we shut down Haaretz, we need to shut down supreme court ...

[Oh Jerusalem]

Es. This is the same Israeli Supreme Court who long ago did not allow the IDF to destroy the buildings used as cover when Pal terrorists butchered Tali Hatuel and all of her children and the buildings finally destroyed earlier this week that were the starting point of the tunnel dug to blow up the IDF base this past Saturday night.

And here go the ignoble idiots again.

[Mediocrates]

yeah yeah, I know, Israeli supreme court is a bunch of back stabbin leftie appologists.
Maybe after we shut down Haaretz, we need to shut down supreme court ...

Maybe the Supreme Court is not the correct venue for crafting political and military policy and tactics. In most countries that is the case.

[Oh Jerusalem]

Maybe the Supreme Court is not the correct venue for crafting political and military policy and tactics. In most countries that is the case.

The Supreme Court here has usurped the law making authority of the Knesset and does what it wants.

It's pretty frightening, actually. This country is becoming a democratic basketcase.

[sharonbn]

Maybe the Supreme Court is not the correct venue for crafting political and military policy and tactics. In most countries that is the case.

The role of supreme court in a democracy (e.g. in Israel, USA, etc.) is to allow the citizens to stop the gov't in case its actions violate their rights.

e.g. the gov't may decide to build a nuclear waste dump site in your backyard - that may be in line with gov't policy, but you can take your case to the supreme court and it can order the gov't to change its decision.

same with military/political/ int'l policy. gov't decisions may incure human rights violations in the name of national security. It is the job of the supreme court to decide if the vilations are reasonable for the purpose of security or not. of course there maybe opposing opinions, sometimes the judges themselves are divided on the issue, and there is bound to be someone on either side who will be displeased with the court ruling, but nevertheless, there is no quetion about the authority of the court in these matters. it is a basic and crucial balance in the democratic system.

[Oh Jerusalem]

Unlike the American Supreme Court, which includes “liberals” and “conservatives,” what distinguishes Israel’s Supreme Court—which preaches pluralism—is ideological uniformity. Of its current fourteen members, all graduated from the same law school, only one wears a kippa, and only one is Sephardi. In contrast, the Knesset has no less than 33 orthodox Jews—27.5% of that 120-member body. As for the Sephardi, recall they number 50% of the Jewish population. Hence Israel’s Supreme Court is extremely unrepresentative of Israeli society.

Even though the Court, unlike the Knesset and cabinet ministries, lacks the complex factual knowledge required to resolve problems in various areas of public concern, it nonetheless arrogates to itself jurisdiction over matters concerning security, counter-terrorism, and even traffic regulations.
- Can Israel Survive Its Judicial System?, A Political Assessment, by Professor Paul Eidelberg

[Mediocrates]

The role of supreme court in a democracy (e.g. in Israel, USA, etc.) is to allow the citizens to stop the gov't in case its actions violate their rights.

e.g. the gov't may decide to build a nuclear waste dump site in your backyard - that may be in line with gov't policy, but you can take your case to the supreme court and it can order the gov't to change its decision.

same with military/political/ int'l policy. gov't decisions may incure human rights violations in the name of national security. It is the job of the supreme court to decide if the vilations are reasonable for the purpose of security or not. of course there maybe opposing opinions, sometimes the judges themselves are divided on the issue, and there is bound to be someone on either side who will be displeased with the court ruling, but nevertheless, there is no quetion about the authority of the court in these matters. it is a basic and crucial balance in the democratic system.

Interesting, that's more or less the role of political parties in one-party dictatorships too. The ability to usurp any law any ruling on any basis, asked or not is generally a sign of an out of control activist court. Would you be so proud if your SC one day decided that for example the law of return was void or that religious courts could trump civil courts on any matter, at will? Would you crow about judicial activism if your SC decided that direct proportioal electoral representation was broken and had to be done away with in lieu of indirect voting districts? Would you be all that happy if, unasked, your SC instituted a 5% threshold proviso for the Knesset, without any public debate?

Maybe these are silly examples but in fact, Supreme Courts are not generally put in place to insure first and foremost some vague, trendy politically effusive opinion of liberal civil rights. They are generally there to insure that the system of governance and justice is more or less equitable. If you had a Constitution your SC would be embroiled in Constitutional Issues and not political arguments about specific laws.

I thought you Israelis treasured democracy?

[Mediocrates]

BTW that is NOT the role of the SC in the USA as you allude to.

[Oh Jerusalem]

I thought you Israelis treasured democracy?

Keep in mind that this country is a whopping 56 years old. Picture the United States in 1832 (Bret Stephens did this in the JPost a couple of weeks ago).

However, indeed there is a major problem of an elitist group of people in high places who have shut out others from competing for their political and especially judicial positions.

This will continue to damage Israel both locally and internationally in the immediate and long term.

[sharonbn]

Interesting, that's more or less the role of political parties in one-party dictatorships too. The ability to usurp any law any ruling on any basis, asked or not is generally a sign of an out of control activist court.

There is absolutely NO comparison between one-party regime and Supreme Court ruling.
First and foremost, the court does not make the law. if it says a given law or gov't decision is wrong - it cannot "correct" the gov't decision. In simple terms Supreme Court cannot directly change the law book. In fact, there were cases where the Knesset (the only body that makes laws in Israel) put laws in place with the sole purpose to overturn court ruling (e.g. the 'Arie Deri' law)
Second, Supreme Court cannot do ANYTHING what-so-ever, until someone decides to sue. its function is entirely responsive and non-initiative. the misleading term 'activist' describes the court's motto, led by its current head, Aharon Barak that "everything is judge-able". but nevertheless, the court cannot initiate any ruling on its own initiative.
Third, even under the abovementioned motto, the Supreme Court turned down cases with the reason that the subject matter is beyond the court's jurisdiction. for example, there was one such case in operation defensive shield in Jenin when the press was forbidden to enter the war zone.

Would you be so proud if your SC one day decided that for example the law of return was void or that religious courts could trump civil courts on any matter, at will? Would you crow about judicial activism if your SC decided that direct proportioal electoral representation was broken and had to be done away with in lieu of indirect voting districts? Would you be all that happy if, unasked, your SC instituted a 5% threshold proviso for the Knesset, without any public debate?

Maybe these are silly examples but in fact, Supreme Courts are not generally put in place to insure first and foremost some vague, trendy politically effusive opinion of liberal civil rights. They are generally there to insure that the system of governance and justice is more or less equitable. If you had a Constitution your SC would be embroiled in Constitutional Issues and not political arguments about specific laws.

To say these examples are silly is a gross understatement. They are on the same level with the example that the court "one day" decides that the law of property is void is stealing is legal.
and again, "unasked" is an irrelevant term for this discussion. if the court is ruling on an issue - it was asked to do so by the prosecutor.

I thought you Israelis treasured democracy?

we do. That is why a hideous law such as the Patriot act would never pass in Israel. We don't have a secret police like the FBI. The name J Edgar Hoover rings any "democratic" bell?

[Mediocrates]

There is absolutely NO comparison between one-party regime and Supreme Court ruling.
First and foremost, the court does not make the law. if it says a given law or gov't decision is wrong - it cannot "correct" the gov't decision. In simple terms Supreme Court cannot directly change the law book.

Sure it can. There are basically 3 kinds of laws in any country: Statutes, regulations and case law. Statutes are legislated laws passed by some body. Regulations are laws that typically written by the executive branch without legislation and case law is formed by judicial process on its own. Overturning a regulation or an executive order is such a law-making power the courts have. Overturning a statute reverts the underlying legal question back to an earlier law which is also making or reinstating a law. And supporting or overturning case law results in new judicial procedures which are laws in their own right. Otherwise what courts do is simply an irrelevant opinion.

In fact, there were cases where the Knesset (the only body that makes laws in Israel) put laws in place with the sole purpose to overturn court ruling (e.g. the 'Arie Deri' law)
Second, Supreme Court cannot do ANYTHING what-so-ever, until someone decides to sue. its function is entirely responsive and non-initiative.

You yourself said the SCs folio is openended. It can review whatever it wishes, or as the case may be, not. This leaves it wide open to charges of political motivation since it has the ability to shape law by not acting as well. See below “everything is ‘judgeable’. We would call that a pocket veto

the misleading term 'activist' describes the court's motto, led by its current head, Aharon Barak that "everything is judge-able". but nevertheless, the court cannot initiate any ruling on its own initiative.

No its dead on, see above. The drivers are not really questions of law or even policy but differences in politics. And that’s how things get to your SC.

Third, even under the abovementioned motto, the Supreme Court turned down cases with the reason that the subject matter is beyond the court's jurisdiction. for example, there was one such case in operation defensive shield in Jenin when the press was forbidden to enter the war zone.

This is really a side effect of your bizarre electoral politics and lack of a constitution isn’t it? All the same whereas in the US it is usually states or federal court advocates or the Federal government itself which is usually one party in a SC case in Israel, it’s quite different. But that difference comes out of the paltry influence non national local governments have in Israel, You really don’t have any notion of a complex web of states and state laws subsumed under the 10th amendment.

To say these examples are silly is a gross understatement. They are on the same level with the example that the court "one day" decides that the law of property is void is stealing is legal.

No not really. What would think for example of a court that demanded a voice in how wars are prosecuted. Is not the wall a case of that? At its heart it’s a tactical method that the court has decided it needs to decide on. What about other military decisions? What if the SC at some point had declared that the Lebanon war was illegal on the basis that it was unfair to the Lebanese? You might say that the court would never make foreign policy…….be careful before you answer that point when you think of the west bank…….

For the Law of Ingathering no one would directly assault it but what would you think of a court that countermanded existing law which defines who a Jew is, or what a Jewish family is and thereby altered the complexion of who could make aliyah? All sorts of exceptions and legal hoop jumping has been made before on these questions all to serve whatever political agenda the courts and government had at that time. What for example might have happened if the SC decided that all the Russian olim back then could not be considered Jews? Oh a few might have come in but your entire country would look different today wouldn’t it.

and again, "unasked" is an irrelevant term for this discussion. if the court is ruling on an issue - it was asked to do so by the prosecutor.

In fact it should be one of two parties not just prosecutors. We in the the US as individuals have the right to bring an issue to the SC within the guidelines the courts and constitutional law set.

we do. That is why a hideous law such as the Patriot act would never pass in Israel. We don't have a secret police like the FBI. The name J Edgar Hoover rings any "democratic" bell?

First off the FBI is not the secret police. And their charter is domestic security. If you think your domestic security services don’t keep tabs on people you are mistaken.

But you have incarcerated people w/o charge and/or habeus corpus for years under the rubric of national security. You simply don’t apply any law at all and leave it up to whatever security apparatus does that sort of thing. We on the other hand have constitutional rights that at least guaranty that some legal fight will result.

[RichardP]

Not being the most informed with Israel law, especially, their Supreme Court; I do, nonetheless, find this debate very enlightening. This being whole point of my joining the IF. My reaction to the Supreme Court was a gut reaction, as opposed to an intellectual one… Wow, has the Israeli SC a death-wish for its citizens?
Although, I do agree with Oh Jerusalem and Mediocrates, in this case and most other discussions; nevertheless, I still appreciate and respect Sharonbn’s perspective of the decision, albeit, I believe he is mistaken.

[Mediocrates]

I don't think there is a right or wrong answer. It simply a question of how political the court is and whether its agenda is transparent or not. Here in the US no one could with a straight face say that the trio of Rehnquist, Scalia and Thomas do not have a political agenda. Clearly they do and we accept that as much as we accept the activist laws of the Burger court of the past that helped get the voter registration act, civil rights, Roe V. Wade, and other critical decisions ennacted. I mean Brown v. Board of Ed on its own is a huge activist decision and there are few people today, exept for maybe Trent Lott who think that it was a mistake.

We understand that there is an agenda in play. The difference is that we think we can see a direction that activism is heading in, in the US. We think we can plot where the Rehnquist lead court wants to go. These are not earthshattering decisions we've seen recently nothing really that shapes the Constitution. But they are critical none the less in that they are political. The difference I suspect with the Israeli SC is that in Israel the SC seems to operate at a much more mundane level like a lower court. They seem to operate without context and they seem to be judging actions not [/i]law. And when courts judge actions then they are corrupting their own purpose and they expose themselves to the same kind of demagoguery that can make rule of law laughable.

[sharonbn]

But you have incarcerated people w/o charge and/or habeus corpus for years under the rubric of national security. You simply don’t apply any law at all and leave it up to whatever security apparatus does that sort of thing. We on the other hand have constitutional rights that at least guaranty that some legal fight will result.

tell that to the men in Guantanamo Bay...