Dorit Beinish: The gift that keeps on giving to the Left
Former Supreme Court Chief Justice Dorit Beinish has retired from the bench, but before she did, she sat on several panels on highly political cases, and she continues to issue rulings that are invariably one-sided. Here's another one.
Beinish ruled that a revenant who cultivated land near the town of Kedumim for more than ten years could not defeat a claim by a purported 'Palestinian' landowner by using an Ottoman law (which is the source of property law in Judea and Samaria) that states that if you have possession for ten years, no one can contest your ownership. What's worse is that there are dozens - if not hundreds - of cases like this in Judea and Samaria, and no one can feel secure after this ruling.
In the ruling, the court accepted a petition brought by three Palestinian landowners, and ordered the Civil Administration of Judea and Samaria to enforce Lesens’s evacuation from the land by April 20.
Lesens must also pay the Palestinians NIS 20,000 and an additional NIS 10,000 to the civil administration.
Yesh Din filed the petition in 2009, two years after the Palestinians said they saw Lesens had fenced off the plot of land, and planted crops and installed an irrigation system on it.
The Palestinians first complained to the civil administration, which issued an evacuation order against Lesens.
But that order was never fulfilled, as Lesens appealed to the military committee of appeals asking for it to be revoked. The committee did so.
Lesens argued that because Kedumim settlers had cultivated the West Bank land for more than 10 years, he was entitled under Section 20 of the Ottoman Land Law to be considered its owner. (Land law in the West Bank is based on Ottoman land codes, to which various amendments have been made.) The High Court, however, dismissed Lesens’s claims regarding the land law, which deals with disputes and states that no claims can be made against against someone who has cultivated a plot of land peaceably for more than 10 years.
In the ruling, Beinisch said Lesens had not provided proof to the court that he had cultivated the land for over a decade, and that he still would have needed to show that he had not taken possession of the land by illegal means.
To prove ownership, the court ruled, settlers must provide proof that they acquired control of the land using honest and legal means.
Beinisch also criticized Lesens for using legal proceedings to delay his evacuation from the land.
Many western jurisdictions - including the UK and most states in the United States - have rules similar to the Ottoman law. It's called adverse possession. Every first year law student in the US learned about them (or at least did when I went to law school). No court in the US would have issued a ruling like this (give Obama a few more years to stack the court and maybe they would).
But Beinish and Co. went to law school someplace else.
The good news (for once) is that we don't have three co-equal branches of government here. The Knesset is more equal than the other branches. In theory, the Knesset can overrule the court. Will they? Don't hold your breath.
LATMA's tribal update featuring Dorit Beinish in retirement and MK Aziz Abdul Messit in co-existence
Here's LATMA's tribal update featuring former Supreme Court Chief Justice Dorit Beinish in retirement and MK Aziz Abdul Messit (Messit means incites) in co-existence.
In a column that's behind a paywall at the JPost, Evelyn Gordon explodes the myth of Israel's apolitical Supreme Court. I get Evelyn's columns by email. Here's some of what this important column says.
If anyone remains unconvinced that something is badly wrong with Israel’s judicial system, the reactions to this month’s High Court of Justice ruling on the amended Citizenship Law should provide ample proof.
In a 6-5 decision, the court upheld a controversial amendment that imposes strict limits on the right of Palestinians married to Israelis to immigrate to Israel. While the right to marry is a basic right, the majority said, it doesn’t include the right to live with one’s spouse in Israel specifically; the state is entitled to restrict marriage-based immigration to protect important interests like security (the amendment was enacted after several Palestinians who obtained citizenship through marriage exploited their residency rights to commit terror attacks).
Leftist jurists, who usually denounce all criticism of the court as “anti-democratic,” responded with a blistering attack on Supreme Court President Dorit Beinisch, blaming her for what they deemed an unconscionable ruling even though she herself dissented from it. Why? Because she personally selected the panel members who created the 6-5 majority – and did so knowing full well that her choices would produce that particular outcome.
This is a truly shocking charge: that the Supreme Court president can singlehandedly determine the outcome of any case merely by selecting the panel that hears it. Unfortunately, it happens to be completely true. Supreme Court cases aren’t heard by the entire court, nor are justices assigned randomly or in strict rotation. Every panel is chosen by the court president, who thereby has the power to shape the outcome.
In this case, for instance, the critics claim that initially, a 6-5 majority favored overturning the law. But because Beinisch didn’t push to get the verdict written before Justice Ayala Procaccia reached the mandatory retirement age, Procaccia had to be replaced. And then, instead of replacing her with someone who could also be expected to oppose the law, like Uzi Vogelman or Isaac Amit, the critics charged, Beinisch replaced her with Neal Hendel, whom she knew would uphold it. In short, they accused Beinisch of repeated decisions calculated to produce a ruling upholding the law, because she feared the Knesset’s reaction if it was overturned.
That the Supreme Court president can determine a case’s outcome by choosing the panel is clearly unacceptable, but it’s a problem that’s easily solved: Just assign justices in strict rotation, or by computerized random selection.
Far more interesting, therefore, is how this story explodes the myth of an “apolitical” Supreme Court. For if even the leftist jurists who are the myth’s chief promulgators now admit the justices’ worldviews are so well-known that Beinisch could have predicted how each of them would rule, it’s pretty hard to argue that the court is “apolitical.”
Contrary to popular perception, there’s nothing wrong with justices having political opinions. Indeed, anyone who could live for decades without developing such opinions would have to be so ignorant, unintelligent or detached from reality as to be totally unfit to serve on the nation’s highest court.
Nor is there anything wrong with the fact that justices’ political opinions influence their rulings. Complex legal questions frequently lack a clear-cut answer; in the current case, for instance, where one strikes the balance between a couple’s right to live together in Israel and the state’s right to protect vital public interests like security is inevitably a value judgment, one on which reasonable people of goodwill can disagree. And the more the court intervenes in controversial political, social and moral issues, the truer this is, since these are precisely the types of issues that lack any single “right” answer. Thus to say that justices’ worldviews shouldn’t influence their rulings is to demand the impossible.
What is problematic, however, is attempting to maintain the fiction that justices don’t have opinions, or that they can somehow avoid letting these opinions influence their rulings.
This attempt is increasingly discrediting the entire legal system, because people aren’t stupid. It’s not hard for ordinary Israelis to figure out that when six justices say security justifies restricting Palestinian immigration while five say the “right to marry” trumps security concerns, the disagreement stems mainly from the justices’ different political and moral judgments. It’s also not hard for them to conclude, by extension, that the justices’ worldviews affect other controversial decisions as well. Thus when self-proclaimed defenders of “the rule of law” – including the justices themselves and senior legal officials like the attorney general – keep insisting that the court is and should be “apolitical,” they merely paint themselves as liars and hypocrites. And how can anyone respect a legal system staffed by liars and hypocrites?
Even more importantly, however, the more Israelis realize that the justices’ opinions indeed affect their rulings, the more those Israelis whose views are unrepresented or underrepresented on the court will feel resentful and discriminated against. And that undermines their trust not only in the legal system, but in democracy as a whole. For if a Supreme Court on which their views are permanently underrepresented can, and often does, overturn the elected government’s decisions, then it doesn’t matter how many electoral victories they win; they have no chance of ever getting their policies enacted.
Unfortunately, that is indeed the case under the current judicial appointments system.
I've talked a bit about the battle we are having over attempts to change our judicial selection process to make it less rigged. In fact, on Thursday, Supreme Court Chief Justice Dorit Beinish, gave a self-righteous speech in which she accused the Knesset of attempting to harm the Court's independence. (If you follow that link, you will see that she has now limited her lecture to 'some' members of the Knesset). Beinish is retiring in two months, and wants to appoint her successor just like her predecessors did. But as Professor J.P. Golbert points out, what Beinish is actually doing is attempting to protect the tyranny of the Supreme Court's Chief Justice - and not the Court's independence (Hat Tip: Elihu Stone).
LET ISRAEL HAVE TRULY INDEPENDENT COURTS
There is a great deal of pious nonsense circulating denouncing as “undemocratic” proposed legislation which would require Knesset consent to the appointment of judges. The denunciations have been so vociferous that the Prime Minister has caved in to them. The self-styled defenders of democracy contend it is undemocratic because it impinges on the “independence of the courts.” Of course, no one bothers to explain how it would have that effect or why it is impossible to have too much of a good thing. Shrill generalizations fill the air with no substance
In the United States, as an example, judges have always been appointed by the President subject to the consent of the Senate. State judges are similarly appointed by governors, subject to consent of the legislative branch. Can anyone seriously believe that the American judiciary does not have independence?
In fact, requiring Knesset approval of appointments would have exactly the opposite effect. The truth is that the courts are totally dependent on the President of the Supreme Court who is the only one in the Israeli judiciary who enjoys independence.
The Israel Bar Association appoints members of the commission and the Minister of Justice is a member, it is true. But cases before the Supreme Court of Israel are not heard by the whole court, as is the case in the United States, where every justice hears every case. I believe it is unprecedented in democracies and unparalleled that the President of the Israel Supreme Court has the power to select which justices will sit on every case before the Supreme Court.
That means the President decides every case, because all the justices know how every one of them views every issue. The President of the court also wields power over those who supposed curb the President’s power. The members of the commission appointed by the Israel Bar are practicing lawyers and the Minister of Justice is likely to be a practicing lawyer again after leaving office. If they oppose the will of the President of the Supreme Court, they can never expect to win another case before the Supreme Court.
Moreover, since promotion of judges is also controlled by the President of the Supreme Court, lower court judges cannot oppose the President either. So the appointees of the Bar and the Attorney General who will likely go back to private practice can expect never to win another case in court. The “independence of the judiciary” in Israel is, in reality, only the untrammeled power of the President of the Supreme Court, who is answerable to no one.
That, in and of itself, is antidemocratic. The basic premise of democracy is that people are corruptible and need to be governed. Those who govern have a great deal of power and power corrupts. So they too need to be governed. That includes the President of the Supreme Court.
In fact, given the degree of dominance of the President of the Supreme Court, the proposed measure would actually reduce only the power of the President of the Supreme Court over the other judges in the system and would establish the independence of the judiciary for the first time in Israel’s history.
Knesset approval of appointments would also increase the independence of the elected branches of government; namely, the Knesset, the Prime Minister and the Cabinet, from the dominance of the Supreme Court, which has arrogated to itself the power to turn the Attorney General into a servant of the Court; to veto appointments to public office, via the Prosecutor’s office, whose career also depends on the President of the Supreme Court, by bringing criminal charges which are then dropped once the appointment is withdrawn; to rewrite or strike down legislation, even to control military actions in the course of battle.
None of the shrill defenders of “democracy” complain about these anti-democratic matters. They warn that Knesset approval of judicial appointments would “politicize” the court, as if the President of the Supreme Court is not political.
The last contention of the opponents of the proposed measures, and the most asinine of them all, is that these measures would bring upon Israel the censure and opprobrium of the Europeans, who would view it as fascistic.
Would they really? First, the Europeans have decided that freedom and democracy are not worth civil war with their militant Islamic populations. They have already decided to surrender to Islamic tyranny. Are we really going to sit and take instruction from them about democracy?
The foregoing is an original piece written by Prof. J.P. Golbert. It has never been published. The writer, formerly a practicing lawyer in New York and California and a law professor in Los Angeles, has practiced law in Jerusalem since 1986.
For the first time ever, an Israeli court has ordered a Jewish town 'dismantled' and its inhabitants expelled. On Tuesday, the court ordered the destruction of the town of Migron - right off highway 60 - by March 2012.
The ruling, given unanimously by Supreme Court Justice Dorit Beinisch, Justice Miriam Naor and Justice Salim Joubran, noted that the West Bank outpost was built without government permission, illegally and on private land owned by Palestinians. The outpost, located in the Binyamin region of the West Bank 5 km. north of Jerusalem, was first constructed over a decade ago, with NIS 4.3 million from the Ministry of Construction and Housing, but without the proper authorization.
In her 2005 report, Talia Sasson said the outpost was constructed on private Palestinian property, a designation which since has been accepted by the state.
Peace Now first petitioned the High Court to evacuate Migron in 2006, on behalf of Palestinians with claims to the property.
The state agreed in principle to evacuate the outpost, but has yet to make good on that pledge.
The matter has returned to court a number of times with the state requesting more time to come up with a plan to evacuate the outpost and rehouse its residents.
In Tuesday's ruling, the Justices remarked that the High Court had acceded to repeated requests by the state to be allowed additional time to deal with the outpost, in order to "allow dialog and come to a mutual agreement over a solution".
The Justices noted that a total of five hearings had been held, in which various plans were discussed regarding the evacuation of the West Bank outpost, which the state does not dispute is illegal.
In 2008, the Council of Jewish Communities of Judea, Samaria and the Gaza Strip struck a deal with the government, in which it promised that Migron would be voluntarily removed to the nearby settlement of Geva Binyamin (Adam) within two years.
However, in July's hearing the High Court learned that plans to evacuate Migron residents to Adam were not progressing at a reasonable pace, and that the chances of that plan being a success still in doubt, not least because Migron residents themselves had not agreed to relocate.
In Tuesday's ruling, the Justices slammed the state for failing to draw up a reasonable schedule for evacuating Migron to the nearby Adam settlement, despite repeated court hearings to discuss the matter and repeated requests by the state to be granted extensions to implement the plan.
The Justices also noted that the state had not negotiated directly with Migron residents to gain approval for the plan, but had done so through the Yesha Council, and that Migron residents had not expressed their agreement to the plan to move them to Adam.
"The residents of Migron have so far refrained from responding or presenting themselves for a hearing before us and have also refrained from making any statement that transferring them to the new neighborhood in Adam is acceptable to them - and the state has not asked them to make such a statement," wrote the Justices.
The fact that three years had passed without agreement since the plan was originally raised "indicates that it will not come to fruition in the forseeable future," the Justices added.
With the Adam relocation plan in doubt even three years after it was first suggested, the Justices wrote, "there is no justification to preserve the illegal situation and to continue to violate Palestinian residents' property rights."
If they don't reach an agreement with the Migron residents, I suspect that they are going to have a little trouble finding someone to enforce an expulsion order. Unless Defense Minister Ehud Barak is willing to call in the Yassamnikim (SWAT team), which are largely 'minorities' (Arabs and Bedouin), I have my doubts the expulsion order can be enforced. Prime Minister Netanyahu's government will not be happy calling in the Yasamnikim. And as President Jackson remarked in 1832, "John Marshall has made his decision; now let him enforce it!";[119].
I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com
Former Supreme Court Chief Justice Dorit Beinish has retired from the bench, but before she did, she sat on several panels on highly political cases, and she continues to issue rulings that are invariably one-sided. Here's another one.
