Column One: Israel's democratic challenge
Caroline Glick , THE JERUSALEM POST Jul. 3, 2009
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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, non-economic 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.

caroline@carolineglick.com