The Court-emperor

Who is the real defense minister? If you ask Professor Shlomo Avineri, the political sciences Israel Prize winner and the former Foreign Ministry director, it is the High Court of Justice, at least when it comes to the separation fence. And who is the Israel Defense Forces chief of staff? Avineri believes it is also the High Court, at least regarding targeted assassinations.

Last week, I presented Ruth Gavison's controversial position paper. "It is not appropriate to grant rights under the Law of Return to someone who has no interest in Jewish life, and who sometimes is even an observant member of another religion," Gavison wrote. She suggested limiting the immigration of Jews "from other cultures" and commented, at length, on the need to minimize judicial activism. Gavision's paper was the first in a series entitled, "Conditions for the Prosperity of the State of Israel," published by the Samuel Neaman Institute at the Technion - Israel Institute of Technology.

The second paper in the series is Avineri's. It is much shorter than Gavison's but no less scathing, and slams the High Court, among others. "There is reason to ask," writes Avineri, "whether the High Court has contributed to the obstruction of government proceedings in Israel." Avineri cites dozens of instances in which "the High Court blocked the proper functioning of democratic rule."

Avineri attacks the silencing of criticism against the High Court. "Just asking a question is considered politically incorrect, if not an objection to democratic rule," he writes. Thus, "It is no wonder that few attorneys and jurists dare to ask." He states: "Recent events related to Professor Ruth Gavison's candidacy for the High Court bear witness to that. Anyone who expresses doubt regarding the extent of the High Court's authority may be obliged to pay, if not with his or her life, then with his judicial future."

Avineri is highly critical of what he calls the High Court's "judicial imperialism." But he considers the main problem to be the expansion of the right to appear before the High Court. In the past, only those who were directly harmed by a government institution could appeal to the High Court. This right was gradually expanded, and it is now a universal right. "There is nothing similar to this anywhere in the world," Avineri writes.

He maintains that the expansion of this right "transformed the High Court into both the first and the last resort, and it actually makes the High Court an active partner in every administrative and political matter involving government authorities ... The rule of law is not rule by court, and the fact that every citizen can halt any government action represents a blow to democratic procedure."

Avineri writes, "One case in which this approach made the High Court some sort of acting supreme defense minister is the separation fence. The High Court, not the defense establishment, determines the route of the fence and and plays supreme arbitrator. Crucial decisions on this matter delay completion of the fence in certain areas."

Another case pertains to targeted assassinations. "Particularly in the most recent case, the High Court turned itself into the supreme IDF field commander under circumstances that do not exist in any other democratic nation in the world." Avineri notes that American and British forces in Iraq do not take orders from supreme courts that tell them how to fight terror. "It is beyond belief that the High Court would tell a commander how to behave," he says.

He stresses that the High Court in no way resembles the United States Supreme Court, which hears appeals after years of deliberations. In the U.S., a matter like the separation fence would come to the Supreme Court's attention only years after construction was complete.

"Take the Guantanamo detainment camp. A few hundred people have been detained there for four years. I presume it will take a few more years until it comes to the U.S. Supreme Court. I do not think a supreme court must rule in real time. We have transformed the High Court into a super-executive authority. This obstructs any approach to proper administration - not to mention division of authority."

Primaries invite thieves

Avineri believes the introduction of primary elections mainly damaged Israeli society. "You have to invest hundreds of thousands of shekels to be elected. That makes the candidate dependent on individuals with means, it leaves him open to make promises to parties with special interests, and it adds to the phenomenon of 'vote contractors' [who cut deals with voters in return for favors]. In other words, all of this creates corrupt norms. If a candidate was forced to court a few power mongers during the days of the party central committees, the primary system now makes him do the bidding of hundreds of people, do favors for friends. A reform intended to enhance democratization produced rampant populism, which represents an invitation to thieves," he says.

"It is no coincidence that many political activists are involved in police investigations. It is not because public representatives are now more corrupt than their predecessors ... Most violations by MKs derive from needs engendered by the primary system. If the primary system did not exist, these violations would not exist." Avineri notes, "The endless granting of interviews by ministers" is another result of the primaries. "There is no other nation in the world where ministers grant endless interviews rather than engaging in ministerial work. Israel is a nation broadcast live," writes Avineri.

"It cannot be said that the primary system increased parliamentary representation. Nearly everyone agrees the opposite is true," he says. Few quality economists or intelligensia are willing to run from one family gathering to another and risk breaking election laws, says Avineri. "On the other hand, influential financial parties, sometimes bordering on criminality, have an interest in 'running their own' candidates," he says.

"The primary system exists in only one other nation, the U.S.," a nation with a unique federal system. "Not a single European nation conducts primaries, something most Israelis don't know." Avineri adds, "Abolishing primaries is vital to healing the institution of parliamentary representation, to diminishing the extent of corruption, and to raising the level of MKs."

Avineri proposes "learning from civilized, European democracies." In most parties there, "Some candidates are chosen from party branches, some from professional associations, some from women's and youth organizations." A vital condition for the success of this system: "Only permanent party members, who have been paying membership dues for at least two or three years prior to the election," may choose candidates.

Inventing Jews

Unlike Gavison, Avineri does not propose amending the Law of Return, but suggests revolutionizing its implementation in order to produce identical results: many less immigrants from the former Soviet Union and the Third World. Avineri denounces the lack of debate regarding a policy that promotes the immigration of Jews, despite the fact that this matter plays a central part in setting Israel's image.

He briefly addressed this in the position paper. In conversation, he said he is mainly critical of how the Law of Return permits the grandchildren of Jews to immigrate. "Anyone searching for a connection to the Jewish people who comes on his own initiative is welcome. I object to sending emissaries to search for grandchildren of Jews throughout the [former] Soviet Union. These emissaries go to considerably remote locations to search for someone whose grandfather was a Jew. It is almost a mission.

"These are people who never considered coming or looking for a connection to Judaism until a Jewish Agency clerk arrived and told them they may have a chance to leave the horror of the former Soviet Union. The result is that people come here with no connection to Judaism. I engaged in some difficult discussions on the matter with Jewish Agency personnel. I told them, 'Send the emissaries home. Don't look for people to keep the system running.'"

Avineri says that the Law of Return "does not refer to Jews who converted to Christianity and surrendered their Jewish identity. Despite that, members of the Ethiopian Falashmura community, who converted to Christianity, are brought to Israel under the Law of Entry. He recalls that the Tsaban Committee, which addressed the Falashmura issue in the early 1990s, permitted bringing them to Israel only to unite families. But, Avineri says, "That narrow opening became a very broad thing. They bring Jews who converted to Christianity to Israel in endless numbers."

"The only reason that they bring the Falashmura," Avineri says, "is pressure from U.S. Jewish organizations and a lack of courage to confront them. Heaven forbid, they are not willing to have these people come to Manhattan. When the Jews left the Soviet Union, U.S. Jews insisted that they have the right to choose [their destination]. But they would not think of offering this to the Falashmura, because they do not want black Jews. They are willing to send them to Israel. I want to see an American rabbi bring them to Manhattan. It's very easy to send them to Israel." He calls this attitude "hypocrisy."

"We invent Jews in India, Bnei Menashe. It is clear these people have no connection to Judaism. So why bring them? A distorted attitude involving demographic fears lies behind this. The Jewish Agency is not an immigration agency for non-Jews. The Jewish immigration pool is more or less finished, and we must live with that - not bring non-Jews here who want to escape Africa or India. I understand that, but what makes it our business?"