Separation of Powers in Israel Eroded by Well-Meaning Bureaucrats

December 29, 2014

5 min read

Civil servant makes political decision, emasculating democracy; High Court Justice issues order, acting like legislator; and a book says the academic left’s boycott is anti-Semitic.

Antitrust Commissioner Prof. David Gilo this week made one of the most dramatic decisions of recent years. It pertained not only to the gas sector, but had much broader implications. It’s a far more significant decision than any other decision relating to the state budget, and it was received with applause one the one hand and jeers on the other.

The decision is not solely economic in nature, and also has political aspects, relating to the United States, Jordan and European states. Gilo’s decision may indeed be very justified. But such a decision, with all due respect, cannot be taken by a public official who was seen to fiercely defend one position and then, just a few days ago, change direction and adopt a completely opposing viewpoint.

The decision concerning the gas sector falls into the realm of political strategy; and the fact that it’s been adopted by the civil service echelon, in total disregard of the political leadership, is glaring testament, one of many, to the loss of governance in Israel.

True, Israeli populism – nurtured by the legal elite, and sometimes the media – determines that democracy comes to light when the elected officials are emasculated and the decision-making is placed in the hands of “professionals.” But this is not democracy; it’s the emasculation of democracy. There’s no need to love the elected officials to understand that Gilo can make suggestions and submit opinions, but that the last word must be left to the uppermost echelon.

***

Quietly, meanwhile, without any public outcry and almost without mention, an unprecedented judicial ruling was handed down a few days ago: The additional amendment to the Anti-Infiltration Law was put on hold by Justice Yoram Danziger, in the framework of a request for a restraining order on the part of refugee aid organizations.

The first amendment was repealed and the second was put on hold to facilitate combining lengthy High Court of Justice deliberations. Both decisions were problematic, and both reflect not only legal activism but judicial imperialism too. The Supreme Court president, who found himself in the minority, wrote in the ruling that the position of Justice Uzi Fogelman, who formulated the majority opinion, is “a constitutional viewpoint that turns the court into a legislator.”

The additional amendment, approved at the Knesset’s final session less than two weeks ago, was designed to regulate the handling of the illegal immigrants and limit their length of stay at the Holot facility, in keeping with High Court rulings. And now, even before implementation of the amendment, Justice Danziger has issued an interim order that for all intents and purposes disqualifies the law and completely disables the state when it comes to dealing with the infiltrators.

The question of the court’s authority to overturn laws is a fiercely debated one. Now we’re at a new stage – the disqualification of a law, for all intents and purposes, by a lone justice, in the framework of a request for an order nisi.

This is the face of governance in Israel. We have Gilo for strategic decisions and Fogelman and Danziger acting as legislators. We may as well forgo elections.

***

The Institute for National Security Studies held a conference this week that dealt with the boycott movement against Israel. The conference was held to mark the publication of The Case Against Academic Boycotts of Israel, a collection of essays edited by Prof. Cary Nelson and Prof. Gabriel Noah Brahm. I thought I knew a lot about the boycott. I was wrong.

With the phenomenon of the boycott becoming far more widespread in the United States, with entire university faculties becoming anti-Israel propaganda departments, with lies and manipulations being aired and spread in the name of “free academic speech,” it’s good to know there’s a distinguished line of academics who have enlisted to expose the folly and oppose the herd.

Anti-Zionism, Nelson explains, just like the demand for equality or opposition to racism, has become a distinct hallmark of the left in Europe, as well as progressive forces in the U.S. There’s a problem here of course, because anti-Zionism, in essence, is not a struggle in support of Palestinian rights, but a struggle instead against Jewish rights.

Anti-Zionism is not a struggle against this or the other injustice caused by Zionism (every national liberation movement has caused injustice), but a struggle whose sole purpose is to create a much greater injustice – the denial of the right to self-determination of one of the world’s peoples.

Anti-Zionism is the “politically correct” version of anti-Semitism. Anti-Semitism slanders Jews as individuals; anti-Zionism slanders Jews as a collective. In no uncertain terms, anti-Zionism is racism. But it is racism that is becoming legitimate for one reason only: It’s directed against Jews, despite the fact that Jews are among the leaders of the anti-Zionist campaign.

The book includes a wide range of essays that expose the biases, the distortions and the manipulations of the supporters of the boycott. Prof. Ilan Troen offers a fascinating review of the history of the boycott. Prof. Martha Nussbaum, highly regarded in the United States in the field of the field of philosophy of justice, writes in part about a well-known figure, Joseph Bove, a folk hero in France, an anti-globalist and anti-Zionist, who arrived in Ramallah in 2002 to show solidarity with the Palestinians who were busy with a murderous intifada against the Jews. That same year saw the shocking massacre of Muslims in the city of Ahmedabad, as part of a long series of clashes and pogroms in the state of Gujarat in India.

Why, asks Nussbaum, did none of those human rights advocates go to the place where a massacre took place? The answer isn’t a mystery. Massacres or genocide aren’t their concern; they weren’t then and they aren’t now. After all, it takes the global Jihad just a few months to murder many more people than the number of victims claimed by Israel’s decades-long control over the territories. After all, the protests against the genocide in Darfur were nothing compared to the festival we are witnessing against Israel, which has never perpetrated anything even close to genocide. But these things are of no interest to the anti-Zionist herd. Its struggle is not against injustice; it’s against Israel.

In another fascinating essay, Nelson tackles the delusions of one the idols of the anti-Israeli left, Judith Butler. Most of the book’s essayists belong to the liberal camp. In Israeli terms, they’re considered leftists. Many of them are known human rights activists.

They are not bound by consensus vis-à-vis Israeli policy. They are bound by the profound understanding that the purpose of the boycott is not to affect a change in Israeli policy. The purpose is not an economic or academic boycott either. The purpose is the negation of Israel’s right to exist as the nation state of the Jewish people. All the leaders of the boycott, and most of their prominent supporters, declare so explicitly.

The book, therefore, is important from two aspects: First, it presents the full extent of the problem – the boycott campaign is becoming more and more of a serious threat to Israel. And second, the fact that important and high-profile academics have banded together against the boycott clearly indicates that on an intellectual level too, we haven’t yet lost hope.

Reprinted with author’s permission from Ynet

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