By David K. Shipler
The
right-wing Israeli government’s plan to eviscerate the powers of the country’s
courts has generated massive demonstrations in the streets, worries by foreign
investors, and boycotts of military service by hundreds of reservists in elite
special forces and air force units. But the “independent judiciary” the
protesters are defending does not have a sterling record on civil rights,
especially those of Palestinian Arabs.
The
Supreme Court has refused to rule against the government’s inflammatory strategy
of settling Jews in the occupied West Bank, a practice barred
by the Fourth Geneva Convention. It has generally permitted the army to demolish the
family homes of Arabs accused of terrorism, a form of collective punishment that
the Geneva Convention also forbids. (Demolition is never used against Jews
charged with terrorism against Arabs.) Inside Israel, the court has
upheld a form of segregation by allowing rural villages and kibbutzim to
reject would-be residents for “incompatibility with the social-cultural fabric
of the town.”
The justices have only tinkered
around the edges of the government’s tough practices. They have occasionally ordered
a small Jewish settlement dismantled for taking Palestinian land. For similar
reasons, they have required
minor changes in the route of Israel’s security wall built on the border of
the West Bank. They have ruled
against demolishing a house where the accused did not actually live, and
where a family tried to prevent the terrorist act. But the justices have typically
avoided sweeping judgments on major policies affecting Palestinians’ rights, deferring
to security concerns and gradually reducing the influence of international law.
“Over
the years,” says
B’Tselem, an Israeli civil liberties organization, “the Supreme Court has
permitted nearly every kind of human rights violation that Israel has committed
in the Occupied Territories.”
Why, then, is the extreme political
right so intent on emasculating the judiciary? First, the Supreme Court has
gone the other way in a few important areas. It struck down a law exempting the
state from liability for damaging civilian property during security operations
in the West Bank. It limited the length of time that “infiltrators,” namely
illegal immigrants from Africa, could be held in a desert prison camp that was designed
as a deterrent to further arrivals.
And, most politically charged, the
court overturned, as discriminatory, the exemption of ultra-Orthodox men from
the military service that all other Israeli men and women must perform. (Although,
with ultra-Orthodox parties giving governing coalitions their parliamentary
majorities, governments have repeatedly obtained the court’s permission to
extend the exemption.)
Second,
if Israel annexes the West Bank as many on the political right desire, the military’s
authority there would presumably end, along with the military courts that have
tried Palestinians on both security and criminal charges since the territory
was captured in the 1967 war. It is conceivable that the Supreme Court would
grant Palestinian residents access to the same rights in the same criminal
justice system as Israelis. That would not be welcomed by the virulent
anti-Arab members of the current government.
Last
but certainly not least, Prime Minister Benjamin Netanyahu would like to stay
out of prison if his endless trial on corruption charges, which began in May
2020, ever ends with a conviction. An independent judicial system is such an
inconvenience to authoritarian-minded leaders, as former president Donald Trump
might soon discover.
Nevertheless, Israel’s Supreme
Court seems less of a threat to some of the right-wing agenda than the protests
in its favor might suggest. It has grown more restrained and more conservative
in recent decades, especially since the retirement in 2006 of its president,
Aharon Barak, a jurist revered both in Israel and abroad for his capacity to
apply human rights to the exigencies of security interests.
In 2011, for example, the court essentially
reversed a 1983 judgment by Barak against ten Israeli-owned quarries that
were extracting building materials from the occupied West Bank. Citing the
Geneva Convention and the Hague Regulations, Barak’s court had ruled, “An area
held under belligerent occupation is not an open field for economic
exploitation.” He reaffirmed the judgment in 2004. But in 2011, Supreme Court
President Dorit Beinisch found that the long period of occupation “requires the
laws be conformed to meet reality on the ground,” which she said included “the
right to utilize natural resources in a reasonable manner.”
In
retirement, former Justice Barak recently
called the Netanyahu government’s judicial overhaul plan “a string of
poison pills” that would be “the beginning of the end of the Third House,”
meaning the third historical period of Jewish sovereignty after the eras of the
ancient First and Second Temples.
Barak’s warning was airily
dismissed by Justice Minister Yariv Levin, who declared that the former Supreme
Court president “does not understand the essence of democracy,” endangered, in
Levin’s view, because “all power rests with the judges, and they decide what’s
proportionate and reasonable. That’s not democratic.”
But it is the Justice Minister who
does not understand the essence of democracy, which relies on the separation of
powers, a cardinal principle recognized by the hundreds of thousands of Israelis
who have taken to the streets. Israel’s Supreme Court is the only institution
standing in the way of unfettered political diktat. With a parliamentary system
whose majority always controls the executive branch, no other check or balance
exists.
The country has no constitution; a failed
constitutional assembly after Israel’s creation in 1948 led to the enactment by
the Knesset, the parliament, of what’s called Basic
Law, a dozen principles on “human dignity and liberty” derived from the
Israeli Declaration of Independence. The Basic Law figures in the Supreme
Court’s rulings on the “constitutionality” of statutes passed by the Knesset. Yet
the court has been cautious, overturning only 22 laws since the power of
judicial review was established in 1992, an annual rate lower than the United
States, the United Kingdom, and Canada.
It appears that even as the authority
to annul laws has been rarely used, its existence has restrained the executive
and legislative branches in the past. Not so much today, as the government has
shifted to the right, and “elected officials have become less likely to accept
legal advice to amend or withdraw bills that are constitutionally problematic,”
according to Yuval Shany and Guy Lurie of the
Israel Democracy Institute.
Ironically, given all the protests,
the Supreme Court has suffered a
decline in public trust, from 80 percent in 2000 to 49 percent in 2010 to
41 percent in 2021. “While the words ‘there are judges in Jerusalem’ used to
put an end to public debate, today they provoke it,” wrote Yedidia Z. Stern,
former dean of the law faculty at Bar-Ilan University, back in 2010.
Dissatisfaction reigns on both the right and the left of the political and
religious spectrums.
Yet for the sake of democracy, large
numbers of Israelis seem to realize, the center has to hold. If Netanyahu and
his justice minister looked around the world or into history, they would see
how every dictatorship subverts and expropriates its judiciary. In the Soviet
Union, pro-democracy dissidents used to speak of “telephone justice,” delivered
by judges who first called Communist Party officials for instructions. In today’s
Russia, supine courts mostly do the Kremlin’s bidding. Hungary’s semi-autocrat
Victor Orban has emasculated the courts, which are also lapdogs of the regimes
in Iran, China, and other authoritarian systems.
Netanyahu
and his extremist, anti-Arab cabinet are ramming through legislation that would
require an 80 percent majority on the Supreme Court to invalidate a law, and
would empower the Knesset to annul that ruling or any other with just a
one-vote majority of legislators. Justices would be appointed mainly by governing
politicians in a restructured Judicial Selection Committee, instead of the one
currently dominated by nonpartisan judges and lawyers.
That
would set the stage for a kind of elected autocracy, placed in office by the
voters but unchecked by the rule of law—or of any law other than the one
enacted at the whim of the legislature, the executive, and their hand-picked
judges, all three branches flowing into a single stream of authority.
The sad
question is whether Palestinians would notice much difference. Maybe not, since
they haven’t had much success anyway, through Israel’s independent courts, fighting
discriminatory laws and regulations.