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The real reason Netanyahu has the High Court in his crosshairs

The government’s plan to curb the High Court’s authority distracts from the fact that on most of Israel’s discriminatory and anti-democratic laws and policies, the two institutions see eye to eye.

Israel's Supreme Court sits as the High Court of Justice, April 1, 2014. (Photo by Oren Ziv/Activestills)

Israel’s Supreme Court sits as the High Court of Justice, April 1, 2014. (Photo by Oren Ziv/Activestills)

In recent weeks, the Israeli media has reported on Prime Minister Netanyahu’s plan to propose new legislation that would grant the government more authority over the selection of High Court justices, as well as limit the court’s judicial review power. The plan has been blocked by center-right Kulanu leader Moshe Kahlon as a condition for joining the new coalition, but Likud and its far-right partners have not ruled out re-introducing it in the future. Chief Justice Miriam Naor also denounced the plan at a conference last week, saying that the Court must retain its position as “the last barrier against harm to human dignity” in Israel.

The dispute over the proposed legislation has largely been framed as the latest episode in a long-standing confrontation between right-wing politicians and the judiciary over the extent of the latter’s integrity and independence. This framing is only partly true: the government and the High Court have indeed clashed on many important issues in recent years, including the internment of African asylum seekers at the Holot detention center, and some incidents of Jewish outposts built on private Palestinian land in the occupied West Bank.

However, this narrative distracts from the fact that the two institutions actually agree on most of Israel’s discriminatory and anti-democratic laws and policies, in contradiction to the Court’s self-proclaimed role as the vanguard of dignity and liberty in Israel. The cases in which clashes do occur almost never relate to “core” questions involving the Jewish character of the state or the main structures of the occupation. On those core questions, however, the Court has not only allowed the government to pursue its agendas, but has also increasingly endorsed the hostile intentions behind them.

The recent approval of the Anti-Boycott Law is one example of this. In the ruling, several justices actively adopted the discourse of Israel’s politicians that views the civil right to boycott, including against settlements, as a threat to the state. Justice Hanan Melcer wrote that boycotts could amount to “political terror;” Justice Yitzhak Amit remarked that BDS could stand for “Bigoted, Dishonest, Shameful;” and Justice Elyakim Rubinstein wrote, “There is nothing wrong in anchoring laws passed by the Knesset in the struggle against those who wish to annihilate us.”

Another example is the Citizenship and Entry into Israel Law, enacted in 2003, which bans Palestinian citizens of Israel from bringing spouses and children born in the Occupied Territories to live with them in Israel. In a 2012 ruling rejecting a petition against it, then-Chief Justice Asher Grunis admitted that the law was indeed discriminatory, but wrote that “Human rights should not be a prescription for national suicide.” The ruling essentially legitimized the racist belief that Palestinians are not entitled to family unification because their non-Jewish identity, regardless of Israeli citizenship, is enough to consider them a security threat – if not a “demographic” threat.

In other cases like the Nakba Law and the Admissions Committees Law, the High Court applied a “non-interventionist” policy by using procedural excuses to dismiss petitions, claiming that they were premature or “not ripe” for review. This policy, however, is an act of complicity: When the Court refuses to stop laws that clearly infringe on freedom of expression and permit racial segregation – which were the clear intentions of the laws’ authors – then the justices are just as responsible for the laws as the politicians who enacted them.

In view of these and other examples (especially from the Occupied Territories), it is almost bizarre to see Netanyahu attacking the High Court when it has in fact been a key enabler of most of his governments’ policies. This takes us to the real source of their dispute, which is less about human rights as it is about the power to determine Israel’s “core” questions. The right-wing, which today dominates Israel’s political sphere, wants to change the historical status quo by explicitly prioritizing the state’s Jewish character in law and officially recognizing the occupation as a permanent feature of the state. The High Court, though willing to facilitate these goals in different ways, is still worried that the politicians’ overt approach will jeopardize Israel’s image as a democracy in the eyes of both its citizens and the international community. Because of this gridlock over methods, Netanyahu has decided to bring the judiciary under his government’s control, revealing the depth of the political leadership’s intolerance for dissent even against those who assist it. Kahlon thus may have halted the proposed bills for now, but he will not stop the right-wing’s motives to pursue them.

This looming conflict between the government and the High Court will be important to watch in the coming years. But from the perspective of human rights in Israel, the discriminatory goals that unite the two institutions are more significant than the issues that divide them. Justice Naor is right in saying that the Court should be the barrier that protects human rights in the country, but its recent rulings suggest that this barrier will not protect Palestinian citizens or the Israeli left. On that point, it seems, the government and the Court have more in common than they would like to admit.

Amjad Iraqi is a Projects & International Advocacy Coordinator at Adalah – The Legal Center for Arab Minority Rights in Israel.

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    COMMENTS

    1. Jello

      Excellent. So if there are no further objections, it is long past time to force the High Court, which has become an unelected legislature, to listen to the will of the Israeli people. It is absurd that an institution whose members are unelected by the people and whose makeup is decided by the institution itself should reject laws on the basis of a constitution that does not exist. It is about as democratic as having the Catholic Church determine what laws France’s legislature should be allowed to pass.

      Reply to Comment
      • Ben

        As I’m sure you’re aware, the U.S. Supreme Court is the main check on the tyranny of the majority. Since you are quite comfortable with an Israeli tyranny of the majority we are wholly unsurprised that you are an enemy of the High Court of Justice. When Ayelet Shaked now gets handed the Justice Ministry by the boxed-in Netanyahu and starts gunning for the Court, your government will have fully dropped the masks and the fig leaves. It will be open and clear.

        Reply to Comment
        • Jello

          As I’m sure you’re aware, the U.S. Supreme Court consists of justices appointed by the President and confirmed by the Senate. The Israeli High Court is not appointed or confirmed by the elected representatives of the people. Effectively the lawyers appoint themselves. They then proceed to legislate on the basis of their own personal convictions with minimal regard to the letter of the law and certainly not based on any written constitution since Israel does not have one.

          In the interests of fairness I am sure you would support granting the Israeli people some control over the makeup of their High Court, like that provided to the representatives of the American people via the nomination process of Supreme Court Justices.

          Reply to Comment
          • Ben

            All well and good but I am very skeptical that the meddling Shacked has in mind is in the direction of the American system’s virtues, but quite in the opposite direction.

            Reply to Comment
          • Jello

            Wonderful. Then we agree that the High Court needs to be reformed to make the Israeli justice system more democratic and representative like the American system. I would presume that Mrs. Shaked believes that such changes would promote her own political interests, but that is a different issue from whether such a reform is good and just and democratic.

            Reply to Comment
          • Ben

            The devil is in the details. Nothing Shaked has said or done gives me confidence about the details she will propose. On the contrary. If you think one of Shaked’s aims is to develop and enshrine checks on the tyranny of the Jewish majority then you know or think you know something I don’t know, to say the least.

            Reply to Comment
          • Jello

            Her aim is to prevent an unelected and unrepresentative body from continuing to arbitrarily meddle in legislative affairs. We already agreed that the American system is more democratic in this regard and a similar process for selecting judges would be beneficial here as well.

            Reply to Comment
          • Ben

            And all of this discussion is beside the point in that it, like the distracting narrative the author refers to, sidesteps or distracts from the author’s glaring main point, which is not that the Court as is is not “democratic and representative” enough but rather the opposite, it is not independent and possessing its own integrity and freedom from popular pressures enough:

            “However, this narrative distracts from the fact that the two institutions actually agree on most of Israel’s discriminatory and anti-democratic laws and policies, in contradiction to the Court’s self-proclaimed role as the vanguard of dignity and liberty in Israel.”

            Reply to Comment
          • Jello

            If you agree with the author then you shouldn’t care about possible changes to the High Court because his argument is that the institution doesn’t do what he wants it to anyway.

            Reply to Comment
          • Ben

            Let me get this straight: the Court is bad, so I don’t care if it gets way badder?

            Reply to Comment
          • Jello

            That is the author’s argument.

            Reply to Comment
          • EMpiricon

            Jello, your original comment above (before the conversation devolved into hairsplitting below) said the High Court should “listen to the will of the Israeli people”. Ben’s response was to that idea, rather than the method of appointment. If you truly want the court to follow public opinion, then it is worse that useless, providing a false lens of “justice” for Israeli policies… which is what it already is. I shudder to think what will happen if/when the court is appointed by genocidal fantasizers like Shaked.

            Reply to Comment
          • Jello

            I appreciate the fact that you find democracy a terrible system of government, and nonetheless I must respectfully disagree. I do not accept the legitimacy of an unelected self-selecting body to arbitrarily determine what laws it likes and what laws it does not. The system for the appointment of judges is what gives such a body democratic legitimacy and at present it has none.

            Reply to Comment
          • Ginger Eis

            @ Jello

            You are a true Lion of Zion and I will contribute the following to complement your very compelling presentation:

            1. Israeli Judge are appointed by the President Of The State Of Israel;
            2. The candidates are nominated by “the Judges’ Nominations Committee”.
            3. The Nominations Committee is constituted by nine individuals: (a) the President of the Supreme Court and two Supreme Court justices, (b) the Minister of Justice and one other Minister, (c) two MKs and (d) two representatives of the Israel Bar Association.
            4. The Justice Minister is the Chairman of the Committee.

            The above is a process that not only meets democratic standards, but at the same time ensures that the best among Jurists gets to the Bench, is independent and impartial and beholden to neither the electorate (as in the USA) nor the legislator or anyone else, but the “Law itself”, the science of the law and his/her conscience.

            5. The Israeli Supreme Court does not arbitrarily decide what laws it likes and what laws it does not like. The Court can only but accept and apply those Legislation that are lawful. Unlawful laws (i.e. Legislation that does not meet the material requirements of Law) will be stricken down and thrown out. The Israeli Supreme Court, the German Bundesverfassungsgericht and The Supreme Court Of the United States have these powers. Legislation is just a significant fraction of the Law and is inferior to certain sources of Law.

            6. The standard for becoming an Israeli Supreme Court Judge is by far higher than the standard for becoming a Judge of the Supreme Court of the United States Of America. In terms of law and the practice thereof, Israel is superior to the United States of America and the United Kingdom.

            Reply to Comment
          • Jello

            Ginger, just to summarize .

            1) 5 out of 9 of the members of the Judge Nominations Committee are unelected and determine the next judge to join the High Court. The people’s representatives are not the ones that choose, so no, it is not a democratic process. It is a closed club of lawyers determining who becomes a High Court Judge. The American system where the Senate gets a voice is far more democratic.

            2) The judges rule based on their own opinions and hide behind vague Basic Laws when ruling. This aspect is secondary to the fact that the judges lack any democratic legitimacy as pointed out in (1) and so their interpretation of the same Basic Laws is of questionable legitimacy. For all practical purposes a closed club of lawyers legislates based on its own interpretations and determines whether it passes or does not pass laws passed by the other legislature. This is not significantly different from a situation in Iran where an unelected Guardian Council vets all laws.

            Reply to Comment
          • Ginger Eis

            Jello,

            1. The People of Israel through their elected representatives choose the President of the State Of Israel and through said President choose the Justices of the Supreme Court of Israel. The People of the United States through their elected POTUS appoints and through their elected Senate confirms a member of SOTUS. The difference? None (albeit in essence). Score: Israel: 1; the United States: 1.

            2. The COTUS does not say anywhere who is eligible to become a member of SCOTUS. Theoretically, POTUS can thus appoint any moron with(out) a law degree to the SCOTUS and the Senate would theoretically confirm such a person. That – can never happen in Israel, because the Israeli law stipulates minimum but very high standard as to who is eligible to become and an Israeli Supreme Court Judge. Score: Israel: 1; the United States: 0.

            3. A democratic society based on the rule of law is one in which the majority rules and minority rights are protected. One of the basic pillars of such a State is the principle of checks and balances. This means that the three branches of Government control and keep each other in balance. More often than not, legislation from the legislator can for several reasons (such as ambiguity, internal conflict, conflict with superior legislation or Higher Principles of Law recognized by Civilized Nations, etc.) be inadequate and/or totally inapplicable. Both the Israeli Supreme Court and SCOTUS are empowered to deal with such situations by complementing the legislator in individual cases and doing what the proverbial “reasonable legislator” would have done. That means that Judges can either fill-in the void in the legislation if possible, determine the intent of the legislator in cases of ambiguity, internal conflict, etc. or strike down specific legislation if it is unconstitutional or in conflict with Higher laws. Thus, were legislators fail, the Judge corrects following the SCIENCE of the law and using instruments developed within said SCIENCE over several millennia (Judges don’t do what they like. The law is a science just like medicine and pharmacy). The difference in this b/w the Israeli Supreme Court and SCOTUS is that SCOTUS is more conservative in its exercise of its power of Judicial Review (e.g. in the Guantanamo cases), whereas the Israeli Supreme Court is more activist (e.g. it tells the Israeli government where to-, where not to- and how to build the Wall to protect the ordinary Palestinian and at the same stamps the Imprimatur of Legitimacy on the Wall itself). For the Israeli Supreme Court the protection of Human Dignity and Fundamental Freedoms of ANY human being is the whole summary of the Basic Law and as such a Peremptory Norm. Beyond that, the number of cases the Israeli Supreme Court handles per year dwarfs the number of cases SCOTUS arbitrarily chooses to take on yearly. Score: Israel: 1; the United States: ¼.

            Final score: Israel 3; the United States: 1¼. Israel wins.

            Reply to Comment
          • Ginger Eis

            Jello, I will reply in three posts. Ignore if earlier replies miraculously show up.

            1. The People of Israel through their elected representatives choose the President of the State Of Israel and through said President choose the Justices of the Supreme Court of Israel. The People of the United States through their elected POTUS appoints and through their elected Senate confirms a member of SOTUS. The difference? None (albeit in essence). Score: Israel: 1; the United States: 1.

            Reply to Comment
          • Jello

            I noticed that you decided to ignore the makeup of the Judge Nominations Committee in your last reply because it is inconvenient for your argument. So, let me restate again. The difference is that the committee that determines the candidates for the Israeli High Court has 5 out of 9 members that are unelected by the people. Both the President and the Senate of the United States which nominate/approve SCOTUS judges are entirely elected by the people. You are trying to ignore this difference but it is pertinent and massive.

            Frankly your whole idea that the law is a “SCIENCE” is stupid. The law is not a “SCIENCE”. Science does not change based on the opinions of those that interpret it. A scientist is not going to come along and decide that because of his personal views on the matter he is going to reinterpret the Law of Gravity. And in any case “SCIENCE” has a very simple yardstick for what works and what doesn’t. The law on the other hand is something that changes and the beauty of the American Supreme Court is that it gradually readjusts the interpretation of the law as new judges are gradually democratically selected by the people. What we have in Israel is a self-selecting unelected group that is effectively legislating from the bench on the basis of their personal opinions couched in the interpretation of relatively vague legal documents. It is most certainly not the job of a High Court to legislate. That authority rests elsewhere.

            You may certainly argue that you prefer to have an unelected group that is disconnected from the people interpret the laws and that is a legitimate, albeit ridiculously undemocratic, position. There are however ways to ensure judicial independence and judicial competence without locking that function in an inherently undemocratic structure and I believe that the US shows that there is a far better and more democratic way of doing that.

            Reply to Comment
          • Ginger Eis

            Thanks for a moving speech, Jello, that ultimately must be rejected because of its fatal lack of internal coherency, strong appeal to mob-justice, irrational antagonism towards Judges and jaw-dropping, incomprehensible rejection of an established science that is taught as such in Western Universities and practiced as such around the world, i.e. the legal science (looking up the meaning thereof wouldn’t be extremely hard and you might want to start with the usual source for the “unordained”: http://en.wikipedia.org/wiki/Doctor_of_Juridical_Science). Regardless:

            1. It is not in dispute that POTUS, contrary to your pretentions, does not pick prospective Supreme Court Justices from the telephone book and/or from the street. POTUS has his own unofficial “selection committee” (ALL of whom are unelected) that scouts out- and presents him with a list of candidates from which he chooses. Compare and contrast that with the official Israeli “Judges Selection Committee” that have elected umbers and experienced Supreme Court Judges!

            2. Unlike in Israel, POTUS most often appoint judges who are members, or at least generally supportive of this political party. As such, a person is more likely to be selected based on whether or not (s)he is a “conservative”, a “liberal”, etc., and not based on his/her intellectual élan and mastery of the legal science. That – not only corrupts and seriously weakens the legal system, but also blunts social progress to a significant degree (which is why racial segregation and slavery, among other evils, lasted more than 400YEARS (!) in the US and many more evils are still being practiced there!). There is an ocean of difference between (a) law and (b) politics/public opinion. Israel has found a healthy balance between the two when selecting Judges – as I demonstrated in my earlier posts which I don’t feel the need to repeat here). The US confuses and convolutes both with one another (as is also inherent in your post advocating mob-justice/overthrow of the Judiciary by politics!) and we need not copy aspects of the US legal system that is inferior to ours!

            BTW

            Since you are all about “the people” this, “the people that”, why aren’t you supporting direct election of Judges by the people? That – would be democracy per excellence, no?

            Reply to Comment
    2. Haifawi

      On the subject of ‘ripeness,’ it is indeed premature for a Court to agree to hear a case without a grievance. It shouldn’t be that hard to find someone willing to incriminate themselves by teaching the Nakba or by applying to live in a community in which they know they will be rejected.

      Reply to Comment
    3. Ginger Eis

      All these leftist hysteria about Madame Shaked (yeah, haha, she made it. woohoo!) and possible reforms within the judiciary is nothing other and a violent storm in s teacup! Israeli Judges are not just bound by (a) “Positive Law”, but also (b) Unwritten Law/General Principles Of Law Recognized By Civilized Nations and above all (c) their own personal Consciences. These legal Instruments really are the Ultimate Swords Of War that will always assure that the Supreme Court always Rules as the Supreme Court pleases – regardless of what a leftwing/rightwing legislature legislates, stamp- and re-stamp the Imprimatur of the Supreme Court as the Most Powerful Organ Of State in the psyche of every man and woman and put Elected Officials and everyone else in their/his/her place. This is the basic equation of the relationship between the Supreme Court and the State Of Israel and no one can change it without dismantling the State. The Supreme Court Is The State Of Israel and vice versa.

      (re-post. Ignore if the original post miraculously emerges).

      Reply to Comment
      • Ben

        Oh ok, if you say so. LoL! Shaked is the one who is hysterical about the High Court, Eis.

        Reply to Comment
    4. Ginger Eis

      @ +972mag

      Again, what are you afraid of? Why are all my posts missing oh you paragons of “free speech” and “dialogue”? Why are you suddenly scared of free debate?

      Reply to Comment
    5. BigCat

      “ Another example is the Citizenship and Entry into Israel Law, enacted in 2003, which bans Palestinian citizens of Israel from bringing spouses and children born in the Occupied Territories to live with them in Israel. In a 2012 ruling rejecting a petition against it, then-Chief Justice Asher Grunis admitted that the law was indeed discriminatory, but wrote that “Human rights should not be a prescription for national suicide.” The ruling essentially legitimized the racist belief that Palestinians are not entitled to family unification because their non-Jewish identity, regardless of Israeli citizenship, is enough to consider them a security threat – if not a “demographic” threat.”

      I am certain that you have noticed that Lady Justice is ALWAYS blindfolded. But please don’t’ think- and, if you already do, stop thinking that Lady Justice is blind. Lady Justice is not only not blind, but in fact sees more than any naked eye ever can.

      Your hero and godfather Yasser Arafat told us that the ultimate weapon in the Arab arsenal against the Jewish state is “the womb of the Arab woman.”

      Lady Justice is not stupid, you know. Lady Justice is watching you closely. Very closely.

      Reply to Comment
      • Empiricon

        BigCat, how can anyone who sees the mere births of “the other” as a threat be considered anything but a racist?

        Reply to Comment
        • Ginger Eis

          1. The Arab birthrate in the State Of Israel is higher than Jewish birth rate. Since the creation of the State Of Israel, the Arab population has almost quadrupled. You can thus be certain that Arabs can- and do have as much children as they want in Jewish State. You should equally know that the Jewish State provides social benefits to her Arab citizens to feed themselves and their children and pay for the education of said children until they obtain a University degree – if they are financially unfit to provide for themselves. The State of Israel will continue to provide for all her (Arab) citizens!

          2. The racist are the people who, while being fed by the Jewish State, claim that the Jewish People are not a ‘People’ and deny them the right of Self-determination as a People;

          3. The racist hypocrites are the people who acknowledge the right of the Arab People to more than 21-States, but deny the Jewish People the right to ONE SINGLE Jewish State in a very tiny patch of land that also is the Ancestral Jewish Homeland;

          4. The racist barbarians are the people who consider “the womb of the Arab woman the ultimate bomb” to bring about the demise of the Jewish State;

          5. The racists are the people who want to abuse the laws of the Jewish State to slowly and steadily import non-Jews into the Jewish State with the goal of – over time – offsetting the delicate demographic balance to the advantage of the Arab minority and bringing about the demise of the Jewish State.

          6. The racists co-conspirators to Dhimmitude, mass murder and Genocide are the people who either desire- or knowingly ignore the consequence of the demise of the Jewish State;

          Are you a racist, Empiricon?

          (another re-post! ignore if the original post miraculously emerges. +972mag moderator, pls. stop being chicken and leave my post alone)

          Reply to Comment
        • BigCat

          Empericon, thank you for making clear that the use of “the womb of the Arab woman as the ultimate WEAPON against the Jewish state” is in- and of itself racist. Basically, I agree with you on that.

          Thank you also for stating eloquently that using “the mere birth of Arab children” as “the ultimate WEAPON against the Jewish state” is in- and of itself racist. Basically, I agree with you on that. You are quite correct in pointing out that Yasser Arafat and the Palestinians are very wrong in that disgusting practice.

          Reply to Comment
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