September
2005
The
Fence, Elections, Peace Index, Israeli Institutions at the Crossroads, Nature,
New Article, New Books
The
Fence
On
September 15, 2005, the High Court of Justice in a 9-0 unanimous vote upheld a
petition submitted by Palestinian residents of West Bank villages, ruling that
the state must reconsider within a reasonable timeframe an alternative route
for the fence in the area of the northern West Bank settlement of Alfei
Menashe.
The
petition was submitted by residents of five Palestinian villages in the Alfei
Menashe enclave. The fence separates them from the rest of the West Bank and
nearby urban areas - Qalqilyah to the north and Habla to the south - where the
residents had gone for most of their services. "Since the fence went up in
the area, nearly all the residents of the Palestinian enclave have lost their
jobs, and their struggle for survival obligates them to choose between illegal
infiltration into Israel and occasional work at starvation wages in Alfei
Menashe, as the servants to the settlers," the petition said.
The
panel nevertheless rejected the July 2004
ruling by the International Court of Justice in the Hague and ruled
that Israel has the principled right to build a separation fence in the West
Bank, beyond the Green Line, for security reasons.
This decision contradicts the petitioners' stance that Israel does not have the
authority to build the fence beyond the Green Line and that the fence was being
built for political, not security, reasons.
The nine-justice panel headed by Supreme Court President Aharon Barak ruled
that according to international law, an army in occupied territory is
authorized to erect a fence in order to protect the lives of Israelis,
including settlers. The High Court based its ruling on regulations of the
International Court of Justice in the Hague, which constitute an integral part
of international law, as well as the constitutional rights of settlers under
Israeli law.
The justices ruled that the international court's decision should be given
legal weight, but that since the judges at The Hague were not presented with
the complete evidential basis for Israel's security needs, the international
court's ruling does not bind the Israeli High Court of Justice.
The panel said the Israel Defense Forces must come up with new solutions that
would not adversely affect the quality of life of Palestinian residents as
severely as the current route does.
The ruling is likely to have serious repercussions for the actual construction
of the separation fence as well as for Israel's foreign policy. Reminder: in
June 2004, the High Court invalidated 30 kilometers of the planned fence route
near Jerusalem, in response to a petition submitted by residents of the West Bank
village of Beit Surik near Mevasseret Zion. In that decision, the court avoided
ruling on whether the state has the authority to build a fence in the West Bank
- an issue the justices addressed in this ruling.
Elections
The
intensity of events in Israel is always impressive. The disengagement process
has not ended, as the smell of elections has become strong and pressing. In a
matter of a few months, the Likud Central Committee will convene to decide
about the future of Sharon, of Bibi, and of the party. This is the prize Sharon
received for evacuating lands of Israel.
There
is a significant discrepancy between Sharon's popularity in the Israeli public,
and his popularity in the Likud Center. Netanyahu, relying on his polls,
retired from the government in order to challenge Sharon. His entire agenda is
dictated by polls. Hard to believe that this is the way a leader conducts his
move, but true. Hard to say whether Sharon will be able to close the gap
between him and Netanyahu. Meanwhile, in the Labour Party Ehud Barak, the main
rival of Shimon Peres within the party, called his fellow party leaders to
unify around Shimon Peres (on August 30, 2005), arguing that Shimon has the
best chance of winning the elections, especially against Netanyahu. Barak is right.
I
was asked: What do you think of Bibi's chances of gaining the Prime
Ministership at the next elections? Well, it is going to be very close. Current
polls show that if Sharon would run against Peres, he is sure to win. But the
Likud apparently does not want Sharon. The polls show that Peres and Bibi have
equal chances to win were they to run against one another.
I
have met Bibi several times, and heard him enough times to consolidate an
opinion about his abilities. I think he is an excellent PR person, arguably the
best spokesperson Israel has. Bibi, however, is not satisfied with this role.
He wishes to lead and to make decisions. Here I have many reservations about
his capabilities and qualities. I always said that he is clever, a thinker, but
neither a deep thinker nor a careful one. He allows his instincts to guide him
and to take over. He is rushing into decisions possibly because he lacks the
required patience. His worldview is very right-wing, not to say extreme right.
He is far from being a moderate who has the will to compromise over the lands
of Israel. When he was in power, he did his best, quite successfully, to halt
the Oslo process and to frustrate Arafat. He certainly has some shares in
paving the way for the eruption of the terror campaign against Israel in 2000.
The positive momentum in the Rabin-Peres days was lost, to such an extent that
Barak was unable to recapture it. I would not like to trust Israel in the hands
of this person. We humans are all prone to make mistakes, but we cannot afford
Bibi's likely mistakes.
Peace
Index
Prof.
Ephraim Yaar and Prof. Tamar Hermann found in their peace index survey that was
conducted from August 30 to September 1, 2005 the following:
The
prevalent view among the Jewish public is that the disengagement plan from Gaza
is only a first step toward an extensive evacuation of West Bank settlements
that will be carried out in the context of an agreement with the Palestinians.
At the same time, only a small majority supports an evacuation of this kind,
whether in the framework of an agreement with the Palestinians or in unilateral
fashion, with the clear preference being for an evacuation that is part of an
agreement. The small advantage of the supporters of a further evacuation can be
ascribed to several factors, such as: opposition in principle to dismantling
Jewish settlements, especially in the West Bank; lack of trust in the ability
and intentions of the Palestinians; and the effects on Israeli society of the
Gaza unilateral-evacuation experience.
As for the performance of the disengagement,
a large majority of the Jewish public believes the security forces showed great
or very great consideration toward the settlers. A slightly smaller majority
thinks the degree of violence the settlers displayed was slight or very slight.
However, the rate of those saying the settlers’ leadership showed little or
very little responsibility is higher than the rate of those who think they
demonstrated great or very great responsibility.
As for the Jewish public’s assessment of who
can advance the peace process with the Palestinians while safeguarding Israel’s
vital interests, it appears that Ariel Sharon is unquestionably in first place,
with Bibi Netanyahu and Shimon Peres trailing far behind with equal support. At
the bottom of the list, receiving just a few percentage points, is Ehud Barak.
About one-fourth of all the Jewish interviewees, however, see none of these
individuals as suited to the task.
Just
published: R. Cohen-Almagor, Editor, Israeli Institutions at the Crossroads
(London: Routledge, 2005). Here is my final word, published with permission by
Routledge:
Raphael Cohen-Almagor
Abstract
This
essay discusses the SHABAC affair of 1984, conceiving it as the most serious
scandal in Israel's history. I argue that key figures and institutions in
Israeli society, including the president, the prime minister, the government,
the knesset, the SHABAC, the army, and the Supreme Court acted wrongly in this
affair. I then move on to discuss the government institution, protesting
against the tendency to form unified governments composed of the two leading
parties, Likud and Labour. I assert that stable democracy needs a strong
government and no less importantly a strong coalition. Only in time of war
there is room to consider such a unified government. As for the Knesset, it is
suggested to raise the entry threshold to 5 percent of the electorate in order
to decrease the number of parties represented. It is further suggested to
change the voting system: Sixty percent of the Knesset to be elected directly
via a party list, and forty percent to be elected in the districts. Finally, I
discuss the roles of the Supreme Court, arguing that they do not include
legislation. At the same time, judges can employ creative interpretations of
the law when they formulate their rulings. It is further suggested that the
Court should strive to represent different religious, national and cultural
groups of society.
Introduction
In
this closing chapter I wish to consider some of the issues raised by the
contributors to this book. The discussion is supposed to give the readers some
food for thought as to how we can contribute to the safeguarding and enhancing
of Israeli institutions.
The
Role of the President
Yitzhak
Navon discusses in his article the SHABAC (Line 300 episode) of 12 April 1984, specifically the
decision of President Haim Herzog to grant clemency to the SHABAC agents
involved in the killing and coverup of the two Arabs who kidnapped a bus and
were subsequently caught. Israeli democracy has known many tragic affairs and
scandals but I think the SHABAC affair is arguably the most serious of all.
Almost all the key figures involved in this episode acted, in my opinion,
wrongly. The affair started with the wrong decision of the head of the SHABAC,
Avraham Shalom, to execute the two kidnappers after they surrendered; continued
with SHABAC attempts to sabotage and to undermine the work of two investigation
committees - the Zorea Committee established in April 1984 and
the Blatman Committee established in April 1985 - appointed to reveal the
truth. The SHABAC insisted on having a representative in the Zorea Committee
and here the SHABAC top agent, Yossi Genosar, excelled in his attempts to clear
his colleauges and to incriminate Brigadier General Yitzhak Mordechay, who
interrogated the two Arabs in the field outside the bus but did not kill them.
Mordechay had to face a court trial which exonerated him. Then, in October 1985
three SHABAC top officers, Reuven Hazak, Peleg Raday and Rafi Malka, who could
not continue living with the deceit approached Prime Minister Shimon Peres,
told him what they know about the affair, but Peres preferred to back up Avraham
Shalom. Consequently, the three top officers were forced to resign from the
service. The two other members in the "Prime Ministers Forum",
Yitzhak Shamir and Yitzhak Rabin, backed Peres's erroneous decision.
The
government, wishing to put an end to this affair, in effect terminated the
Attorney General's term in office, although Prof. Zamir made it clear that he
wished to serve in office until the affair comes to a conclusion. The main
figure who stood for law, order and furthering truth and justice had to step
down from office for his insistence to pursue the matter by ordering a police
investigation. However, the scheme did not help as Zamir's replacement, Yoseph
Harish who entered office in June 1986, reached the same conclusion and ordered
the opening of a police investigation.
Then
came President Herzog's shameless decision to grant clemency to the SHABAC
agents before they were convicted. The decision was backed by Attorney General
Harish, Minister of Justice Yitzhak Modai, Minister of Defence Arens and most
of the government ministers (the only objection came from Ezer Weitzman, who
later became President). This act mocks procedures of justice. And finally the
Supreme Court refrained from disqualifying the amnesty decision, preferring
security considerations over the principle of equality before the law. The
Supreme Court, in a 2 to 1 decision (Meir Shamgar and Miriam Ben-Porat v.
Aharon Barak) held that were the SHABAC agents to stand trial, severe damage
was to be expected to the highest public interest, and that under the
circumstances no other reasonable solution could be effectuated. I beg to
differ. To my mind, severe damage was inflicted on the public interest as a
result of the clemency decision, and the reasonable solution should have been
to unveil the deceit and corrupt behaviour of the SHABAC in this affair,
introducing law and order norms into a service that was acting secretively,
away from the public eye, and consequently allowed itself to act in accordance
with unacceptable norms of murdering people after they surrender, lying to law
and order authorities, blaming others for their own wrong deeds, and then
getting away with all this misconduct by approaching the state president,
holding tight to the altar of security. Never in our history was there such a
lunar eclipse, where key figures cooperated to defend a corrupt secret service,
holding false security considerations as a sacred supreme value.[1]
The
Government
In
the near future it seems that the Likud Party will continue to lead the
country. The Labour Party should resist the temptation to join another
coalition government with the Likud. Stable democracy needs a strong government
and no less important a strong opposition. Labour, and Israel, paid a high
price for sitting together with the Likud in the previous governments. Labour
lost its identity. You cannot be part of a government and then go out and
criticize it for misconduct. The public is not stupid. The public realizes that
Labour was part of this same government until yesterday and all it has to offer
is different people, but the same direction. If the choice is between the
original and the copy, the original is preferable.
Israel also paid a high price. I see a
direct link between the lack of strong opposition and rising corruption.
Without sufficient safeguards and brakes, both parties are exploiting their
power and some are tempted to cross not only ethical but also legal boundaries.
I think that the only exception to this anti-Likud/Labour coalition is a time
of war. Such a coalition was justified in 1967, on the eve of the Six Day War
for a limited period of time. I did not imagine that Labour and the Likud would
stick to this coalition for years since the 1980s. I hope the leaders of the
second largest party will be wise enough to understand the political price they
will have to pay if they do this. The Labour leaders were not very prudent in
entering into a coalition government under Ariel Sharon's leadership. Now they
pay the price.
Patience will pay in the long run. To be
credible, the second major party should offer opposition to the government,
otherwise it will lose its identity.
The
Knesset
The
Knesset, as Naomi Chazan rightly notes, has far too many parties. Consequently,
its legislative effectiveness is relatively small, and the government’s ability
to sustain power is lessened. The multi-faction composition opens the way to
manipulations, gives rise to blackmail and undermines coalition effectiveness.
The threshold to enter parliament, 1.5 percent of the electoral vote, gives a
lot of leeway to representation and exploitation at the expense of stability,
working to further the ends of partisan groups. I would suggest raising the
threshold to five percent, as is the case in Germany. Effectively, this law
restricts the number of splinter parties in the Bundestag and the regional
parliaments and promotes political stability.[2] The five percent clause has been a factor
in every federal election since 1957.
Germany
has certainly learnt the lessons of its history and can serve as a model also
with regard to the voting system. Germany is using a mixed electoral system[3] in which part of the Bundestag is elected
in single majority districts in
which a candidate must gain the greatest number of votes to win, and part is elected
through proportional representation, which gives all parties a fair
opportunity to gain some representation in the legislature based on their
electoral strength. Germany’s policymakers after WWII wanted to avoid a
repetition of the Weimar proportional representation system, which encouraged
multiplicity of parties to run candidates for the Reichstag, thereby
contributing to political instability and to the rise of National Socialism.[4] In the early 1990s, Russia, Mexico and
Japan adopted a similar mixed electoral system. I suggest the same for Israel.
Sixty percent of the Knesset to be elected directly via a party list as is now
the case in the proportional system, and forty percent to be elected in the
districts.[5] The idea is to split Israel into several
districts in a way that would reflect the various groups in society and their
relative prominence.[6] Each voter will cast two ballots: the first
for one of the competing party candidates in the district; the second for one
of the lists of candidates drawn up by each party. The number of mandates
received by the party is based on its percentage of votes in the entire
country. The seats are then distributed to the parties according to their
strength in each district.[7] The combination of a relatively high threshold
and a mixed electoral system would reduce the ability of small interest parties
to be elected, will make the Knesset less diversified, with five or six parties
at most, and reduce the extortion power of the small parties, some of which
would altogether disappear. The Knesset’s power will rise and its effectiveness
as a legislative body would grow.
I
am not the first to suggest these reforms. They have been put on the public
agenda time and again, and every time have been turned down due to pressure
exerted by the small parties fighting for their survival. Most notably, the
religious parties have resisted such attempts with notable success. Israel
needs strong and bold leaders who are able to rise above and beyond their
immediate interest to sustain power in order to carry out these reforms to
better legislative ability.
The
Supreme Court
The
Supreme Court has attracted quite a lot of criticism in recent years. It was
attacked by conservative and religious circles for its liberal adjudication on
civil matters. In turn, the Court was attacked by the political left for its
often hard line approach on security matters. I would like to take issue with
two general lines of critique: the Court's activist approach, and its lack of
representation of significant segments of society.
As
for the first issue, Israel has no constitution, no bill of rights, nor even a
Basic Law to defend fundamental civil liberties, thus the Court is the main
bastion of safeguarding democracy and human rights. For this reason justices of
the Supreme Court are often required to adopt a creative approach in
adjudication. The Court cannot hide behind the lack of explicit written
provision when crucial questions of constitutional nature are at issue, leaving
their resolution in the hands of partisan politicians. Since political parties
had failed to reach a compromise over the enactment of a law to safeguard civil
rights, requiring individuals and bodies to approach the Court to find
assistance, the Court should not refrain from taking a stand on constitutional
matters. Having said that, the Court derives its authority from the law, and it
has to adjudicate in accordance with the law. In addition, the Court cannot
ignore the social and political environment in which its decisions are made and
their likely implications.
This book describes in detail the tensions
and schisms that are part and parcel of Israeli life. In such an atmosphere,
the role of the judge is to set standards for action for both politicians and
the courts when they are faced with constitutional matters, especially where
attacks on the very foundations of democracy are concerned. Hence a framework
exists for taking normative constitutional principles into account. These
principles may in some "hard cases" convince the Court to take a
creative approach.[8] Here are two sets of considerations that
inevitably play their part when judges come to formulate a ruling. One set is
related to the moral convictions held by the judges, influenced by their
personal upbringing and educational background, as well as by the tradition and
values of the society in which they live. The other is concerned with the
specific legal history. Precedents and other legal facts are bound to limit the
moral considerations of judges but they should not exclude moral considerations
altogether. When faced with an unprecedented situation, in which they are
required to use their discretion to find a judicial solution to a "hard
case", judges should decide the case by interpreting the political structure
of their community so as to find the best possible justification, in principles
of political morality, for the structure as a whole. Accordingly, if the right
of people to be treated as equals and not to be harmed by others can be
defended only by creative adjudication, then creativity is not only in order
but necessary. This is the case as long as the judge tries to make the creative
decision in line with previous ones rather than starting in a new direction as
if writing on a clean slate.[9]
At
the same time, a difference exists between creative interpretation and judicial
legislation. It is not the role of the Court to legislate. Instead, one of
its roles is to scrutinize the legislature. One may argue that the difference
between the two concepts is merely semantic. I, on the other hand, think that
the tone often makes the music. Even only for tactical reasons, the Court
should be aware of its place and of its role in the democratic system and
exhibit its awareness to the public. It should not attempt to replace the work
of the Knesset.
The
second major critique that is often voiced against the Court relates to its
lack of representation. The Court was attacked for its social homogeneity.
There was never an Arab justice in permanent appointment. The Court consists of
mainly Ashkenazi, secular Jews and it is argued that they tend to have much in
common. Consequently their adjudications do not reflect ideas and opinions that
are prevalent among the Sephardi and the more traditional circles.
The
ethnic/religious/national origins of a candidate should not be the major
consideration in appointing him or her to the Court. Merit, of course, should
be the first and foremost consideration. But sometimes there may be two or
three candidates with similar credentials and experience. Then the candidate's
social background may play a role. The Court should strive to represent major
sectors of society, and not be aloof from the social environment and the
citizens whom it serves. It is to its advantage to try to represent large societal
segments and to have plural worldviews stemming from different religious,
national and cultural backgrounds.
Nature
The two terrifying
storms, Katrina and Rita evoked somber thoughts. We have achieved so much,
conquering the moon and Mars, yet stand and watch how such storms are building up, and the only measure we take is
evacuation. If people in the Bush administration are reading this, I plead with
you: Put together a group of scientists to explore ways to mitigate storms and
halt their building up into destructive hurricanes. I find it hard to believe
that we can't do anything, but just watch their gaining strength.
New
Article
Media
Coverage of Acts of Terrorism: Troubling Episodes and Suggested Guidelines, Canadian Journal
of Communication, Volume 30, No. 3 (2005),
pp. 383-409.
The job of the press is not to worry about
the consequences of its coverage, but to tell the truth… As much as those of us
in the press would like to be popular and loved, it is more important that we
are accurate and fair… and let the chips fall where they may.
Larry Grossmann,
President, NBC News
Abstract
During the past forty years there have been
many instances in which media coverage of terrorist events was problematic and
irresponsible, evoking public criticism and antagonizing the authorities. This
essay aims to shed light on the intricate relationships between government,
media and terrorists. Through close scrutiny of irresponsible actions of some
organs of the media in crisis situations in the USA, the UK, Israel, Canada and
Germany, it is argued that important lessons should be learned, indicating the
need to develop a set of guidelines for responsible media coverage of terror.
One might think that in this triangle of government, media, and terrorists the
media would side with the government in the fight against terror. This study
shows that this was not always the case, and that the media sometimes allied
themselves with terrorists for partisan or ideological reasons. The media
should cooperate with the government when human lives are at stake in order to
bring a peaceful end to the terrorist episode.
The
article will be of interest to people who are interested in ethics,
communication and terror; to academics, media professionals and politicians. Those
interested to read it are welcome to contact me and I'll gladly send a copy.
New
Books
Eric
Barendt, Freedom of Speech (Oxford: Oxford University Press, 2005),
revised and updated edition of the 1985 book.
R. Cohen-Almagor, Israeli Democracy at the
Crossroads (London: Routledge, 2005).
R.
Cohen-Almagor, Israeli Institutions at the Crossroads (London:
Routledge, 2005).
Martin
Hirst and Roger Patching, Journalism Ethics: Arguments and Cases (Melbourne:
Oxford University Press, 2005).
Please consider ordering them for your library.
With my very best
wishes from Villa dei Pini, Shana Tova U'meusheret,
Rafi
My last communications are available on http://almagor.blogspot.com
Earlier posts at my home page: http://lib-stu.haifa.ac.il/staff/rcohen-Almagor
Books
archived at http://almagor.fetchauthor.info
Center
for Democratic Studies http://hcc.haifa.ac.il/~rca/center/
Those wishing to subscribe this monthly Newsletter are welcome to contact Raphael Cohen-Almagor at ralmagor@soc.haifa.ac.il
[1]. For further discussion,
see "Maariv Report: The Shabac Affair", Maariv (18 July 1986),
pp. 6-8 (Hebrew); M. Kremnitzer, "The Case of the Security Services
Pardon", Tel-Aviv Univ. L. Rev., Vol. 12 (1986), 595; Ilan Rachum, The
Shabac Affair (Jerusalem: Carmel, 1990) (Hebrew).
·
[2]. In Germany, parties that
achieve less than 5% of the votes or do not receive at least three direct
mandates for the constituency candidates cannot participate in the allocation
of seats. See Eckhard Jesse, Elections: The Federal Republic of Germany in
Comparison (New York: Berg, 1990), p. 71.
·
[3]. But see Eckhard Jesse,
"The Electoral System: More Continuity than Change", in Ludger Helms
(ed.), Institutions and Institutional Change in the Federal Republic of
Germany (Houndmills: Macmillan, 2000), pp. 124-142, esp. p. 127.
·
[4]. Gerhard Braunthal, Parties
and Politics in Modern Germany (Boulder, Col.: Westview Press, 1996), p.
46. See also Susan E. Scarrow, "Political Parties and the Changing
Framework of German Electoral Competition", in Christopher J. Anderson and
Carsten Zelle (eds.), Stability and Change in German Elections (Westport,
Conn.: Praeger, 1998), pp. 301-322.
·
[5]. In Germany, each of the
two systems weighs 50 per cent of the voting power. I suggest breaking the
balance and giving more weight to the proportional system because experience of
primaries held in the two major parties, Labour and Likud, showed that
candidates competing on the national level were better equipped to serve as
legislators than representatives elected in the districts. The Likud does not
hold primaries anymore and shifted the locus of power to its central committee.
Labour still resorts to primaries that combine the mixed electoral system: some
are elected nationally; others in the districts.
·
[6]. Until German unification
in 1990, each Bundestag had at least 496 deputies, half of them elected
directly by plurality in the 248 single-member districts and the other half
elected on a system of proportional representation by party lists in the
country. Since unification, the deputies number at least 656, and the districts
328 to provide sufficient representation to eastern German voters. The size of
each district must not deviate by more than one fourth from the national
average. See David P. Conradt, “The 1994 Campaign and Election”, in David P.
Conradt, Gerald R. Kleinfeld, George K. Romoser and Christian Soe (eds.), Germany’s
New Politics (Providence, RI.: Berghahn Books, 1995), p. 2; Braunthal, Parties
and Politics in Modern Germany, op. cit., p. 47. See also Peter James, The
German Electoral System (London: Ashgate, 2003).
·
[7]. Of the two ballots, the
second is the more important because it will determine the number of parliament
seats that each party gains. If a party receives more direct seats than it
would be entitled to under proportional representation, then it receives
additional seats. In the 1994 Bundestag elections, two of the parties (CDU and
SPD) received 16 additional mandates. For further discussion, see Gert-Joachim
Glaessner, The Unification Process in Germany (London: Pinter
Publishers, 1992).
[8]. Ronald M. Dworkin,
"Hard Cases", Harvard Law Review, Vol. 88, No.6 (1975):
1057-1109; idem, Law's Empire (Cambridge, Mass.: Harvard University
Press, 1986).
·
[9]. R. Cohen-Almagor, The
Boundaries of Liberty and Tolerance (Gainesville, FL: The University Press
of Florida, 1994), chap. 11.