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Despite its flaws, we need to fight for Israel’s High Court

By propping up a legal system that does not protect the most vulnerable and powerless, the justices of Israel’s High Court have planted the seeds of its own destruction.

By Michael Sfard

Israeli prime minister Benjamin Netanyahu with Supreme Court Chief Judge Esther Hayut at a memorial service marking 22 years since the assassination of Prime Minister Yitzhak Rabin, held at Mount Herzl cemetery in Jerusalem. November 1, 2017. (Marc Israel Sellem/POOL)

Israeli prime minister Benjamin Netanyahu with Supreme Court Chief Judge Esther Hayut at a memorial service marking 22 years since the assassination of Prime Minister Yitzhak Rabin, held at Mount Herzl cemetery in Jerusalem. November 1, 2017. (Marc Israel Sellem/POOL)

It is widely expected that the next Netanyahu government will set its sights on hollowing out the judiciary in Israel. According to countless reports and statements by Netanyahu and other senior politicians, the fifth Netanyahu government plans to advance legislation to strip the High Court of Justice of its power to revoke unconstitutional laws and strip it of the power to scrutinize administrative acts, government policies and executive decisions.

Netanyahu and his cronies want an obedient court. They want a court that will uphold their obscene whims and rubber stamp anything that musters a simple parliamentary majority.

Netanyahu’s corrupt, personal self-interest of avoiding being put on trial, combined with the annexationist-apartheid agenda of his allies in the nationalist-Kahanist camp, have made that vision possible.

It is difficult to overstate just how deep of a change Israel’s system of governance will undergo if the Knesset gives itself the power to effectively veto High Court decisions, or if it strips the court of its powers of oversight. The ruling parliamentary majority and the government in Israel already have powers that are unmatched in the democratic world; there is virtually no system of checks and balances in place. The realization of that unchecked power naturally harms interests — and sometimes the rights — of individuals or minorities and disadvantaged group.

In order to grasp the significance and prevalence of judicial review over government bodies, one need only recall how Netanyahu recently ran to the High Court (oh, the irony) to complain that State Comptroller’s Office would not permit him to fund his legal defense in pending corruption cases with donations from a wealthy patron. That Netanyahu himself sought relief from the courts from what he believed to be an unjust decision against him demonstrates perfectly how central a feature judicial review is for a modern system based on the concept of rule of law that respects individual rights.

Thus the desire to protect the rule of law and minority rights, by protecting Israel’s Supreme Court, is only natural.

Hundreds attend a protest in Jerusalem against attempts to enact laws that bypass the High Court of Justice, on April 21, 2018. (Yonatan Sindel/Flash90)

Hundreds attend a protest in Jerusalem against attempts to enact laws that bypass the High Court of Justice, on April 21, 2018. (Yonatan Sindel/Flash90)

And yet, the truth must be said: Israel’s High Court played a role in nurturing the weeds now threatening to cut off the locks of its hair. Yes, for many years the High Court had an affair with its own Delilah — the settlement movement and occupation, which planted the seeds of apartheid. Its justices were the ones who enabled the establishment of settlements, land expropriation, and the exploitation of natural resources in occupied territories for the benefit of the occupier and in clear violation of prohibitions set in international law.

It was the High Court justices who authorized every method of dispossession and domination conjured up by the occupier-annexationist mind — from deporting Palestinian political activists and leaders to demolishing hundreds of homes of families of terror suspects to assassinations, administrative detentions, curfews, sieges, and even opening fire at demonstrators on the Gaza border.

There, in the occupied Palestinian territories, the justices allowed the messianic right to do almost everything it wanted, until it grew from a parasite into a predator that threatened the very hand that fed it. There, in the occupied Palestinian territories, the justices helped establish the state that Netanyahu and his allies want to establish here, within Israel’s pre-1967 borders: a state without checks on power, where nationalist values overpower universal ones, where political opposition and criticism are beyond the pale, where dissenters are silenced, deemed enemies, arrested and punished.

In the 1980s, the Israeli left warned of a “creeping annexation” of the “territories” to Israel. But it turns out the process actually taking place is the opposite: Israel is being annexed to the occupied territories, and the High Court’s corpus of rulings vis-à-vis the occupation is the oil which smoothens it.

Israeli lawyer and Otzma Yehudit party member Itamar Ben-Gvir seen at a court hearing at the Supreme Court in Jerusalem asking to disqualify Ra'am-Balad's list from running in the upcoming elections, March 14, 2019. (Hadas Parush/Flash90)

Israeli lawyer and Otzma Yehudit party member Itamar Ben-Gvir seen at a court hearing at the Supreme Court in Jerusalem asking to disqualify Ra’am-Balad’s list from running in the upcoming elections, March 14, 2019. (Hadas Parush/Flash90)

Thus, the justices of Israel’s High Court played a significant role in the creation of the political culture that has led us to the present, that which fantasizes about destroying the rule of law and granting unlimited power to our Jewish supremacist leaders.

A few retired High Court justices have given interviews and made public statements in recent weeks about the threats the court is facing. They are worried. They are angry. They are bewildered. But they cannot wash their hands of this. They legitimized the tyranny there and their astonishment over the fact that it has arrived here is childish and feigns innocence.

This isn’t to say “they deserve it.” We don’t deserve it. This wave of authoritarianism has struck many countries — Poland, Hungary, India, and of course Russia and Turkey, to name a few. The vector of regime change is identical to all of them, although it seems that Israel’s drop is even steeper than other countries. It is precisely because we have an established tradition of judicial review over the government (inside the Green Line), it is precisely because the judiciary has become the major if not only balancing body (inside the Green Line), that the change is so stark.

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In the absence of a state comptroller with teeth, a parliament with real powers of oversight given to the opposition, a resilient constitution, and a media that doesn’t just follow the herd, the damage to the powers of the judiciary will lead us into an authoritarian regime which — even setting the occupation aside — cannot be considered a democracy.

We must crush these maniacal attempts — unprecedented in the democratic world — to undo the most important legal institutions in Israel. We must fight back against the Netanyahu government’s bid to concentrate power in the hands of the “majority.” (They do not actually represent the majority, but rather the majority of the Israeli government’s subjects who have the right to vote; millions of others do not have that right.)

Every Israeli has a duty to take to the streets and wage an uncompromising struggle to prevent the only checks on government from being shattered. But we must also learn a lesson from our shameful legal history. A legal system that does not protect the most vulnerable and powerless sows the seeds of its own destruction. It’s that simple.

Michael Sfard is an attorney who specializes in human rights law and international humanitarian law, and the author of “The Wall and The Gate: Israel, Palestine and the Legal Battle for Human Rights.” This article also appears in Hebrew on Local Call. Read it here.

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    COMMENTS

    1. Eliza

      Ttt

      Reply to Comment
    2. Eliza

      But perhaps you do deserve it. ‘It’ being the process of the de facto annexation of the West Bank also being the process under which Israel Proper begins to resemble the West Bank in terms of basic legal protections against the excesses of the State.

      Did you really think that the quest for maximum land but minimum non-Jews that Israel (under all regimes) has pursued for decades, with minimum objections from Israelis, could take place without Israeli society paying a price?

      All sectors of Israel have either cheered on Jewish only settlements as their birthright or just looked the other way and shrugged. Same with Gaza and the slow genocide happening there. So, just why do you all not deserve the same fate as the Palestinians where your protection against the powerful and the excesses of the State may now be compromised?

      Reply to Comment
      • Lewis from Afula

        Eliza:
        In the long term, forcible mass repatriation of the Arab Agressors represents the only way forward. I know it, you Know it and so does most of the Israeli population.

        In order to faciliate this, the Judicially-activist “Supreme Court” needs to be reformed. To thjis end, the self-electing club of Leftist Cuckoos needs to be replaced by real Judeges, who will be nominated by the electorate’s representative – the Knesset.

        Once a real Supreme Court is in place, mass expulsions can take place.

        Reply to Comment
        • Bruce Gould

          @Lewis: The role of the Israeli Supreme Court in regulating the lives of Palestinians in the West Bank is complicated, but it looks to me as if it’s already a kangaroo court, ready to do anything the government wants. Why wait for more conservative justices?

          “Fake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition of Palestinian Homes and the Dispossession of Palestinians”

          https://www.btselem.org/publications/summaries/201902_fake_justice

          So when is this expulsion going to happen already? And why can’t you give us more details – transportation, time frame, destination points for the Arab Aggressors, etc?

          Reply to Comment
        • Eliza

          I accept the logic of your statement that an enforced mass transfer of the Palestinian people will clear the way for Greater Israel to emerge as a majority Jewish State. Where we differ is that you call this the ‘way forward’ and I call it ethnic cleansing and a crime against humanity.

          One of the major miscalculations of the early Zionists was their belief or hope that the non-Jewish Palestinian population would somehow just disappear. They didn’t foresee samud, the fierce attachment of the Palestinians to their land and homes. The Israeli courts have never protected the property rights of Palestinians or acted to protect the excesses of the State against the Palestinian people. Whether the Israel Court system loses its indendence from the elected Government of the day will really affect the Palestinians one way or the other. However, it can be expected to adversely affect the protection of Israeli Jews against the excesses of the State. This is what the article is bemoaning when it states that Israeli Jews do not der serve this. All I am saying is that those who stood by while the civil and property rights of one set of people were not upheld maybe do deserve to have their protections against the excesses of the State quashed.

          Reply to Comment
          • Lewis from Afula

            I have no problem with samud – so long as they do it in JORDAN (where they belong).

            Reply to Comment
          • Ben

            ELiza, you have given us highly intelligent replies here.
            You are right, Palestinians are not afraid of these annexation policies, because annexation has already been happening for a long time now.
            You are right to say that perhaps Israelis deserve it. That their own rights and freedoms now seem threatened is the only thing that brought out a lot of the elites to the rally in Tel Aviv Saturday.
            How does it make sense to say, on the one hand, that the High Court (and the public) played a role in nurturing the weeds, enabled the settlements and expropriation and exploitation for the benefit of the occupier in clear violation of international law, authorized every method of dispossession and domination conjured up by the occupier-annexationist mind, and then on the other hand to say that “they don’t deserve it”?
            You caught that and intelligently laid out the problem I agree with you.

            Reply to Comment
          • Lewis from Afula

            Ben:
            It was hilarious watching the “elites’ rally” the other day on TV.
            A bunch of elderly, Ashkenasi, secular, wealthy people from North Tel Aviv holding up signs.
            What a joke, ay ?
            Talk about the 1% telling the rest of society what to do.
            At least this elite will be demographically defunct very soon.

            Reply to Comment
          • Ben

            This is your Russian style disinformatsiya, akin to Trump saying “my inaugural crowd was the biggest ever!” when the photos plainly show his crowd was pathetically smaller than that. Then he lied about the photos, saying they were photoshopped. Then he never stopped lying.
            I enjoyed watching Ayman Odeh speak and Jews begin to say “hey, allying with Arab parties, what a great idea, why didn’t we think of that before?! Duo-oh!”.

            Reply to Comment
          • Lewis from Afula

            Another a Ben-type joke response.
            The guy must live on a different planet from the rest of us.

            Reply to Comment