INTO THE FRAY: Israel’s High Court-When Legality loses its legitimacy

 For your perusal, my latest INTO THE FRAY column

Israel’s High Court-When Legality loses its legitimacy

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 In overturning a previous decision of the Knesset’s Central Elections Committee, the High Court took another giant step towards further undermining the already dwindling public confidence in the Israeli judiciary.

 

It appears this week on the following sites (in alphabetical order):

ISRAEL NATIONAL NEWS: http://www.israelnationalnews.com/Articles/Article.aspx/23636
ISRAPUNDIT: https://www.israpundit.org/into-the-fray-israels-high-court-when-legality-loses-its-legitimacy/
JERUSALEM HERALD:
JEWISH PRESS: https://www.jewishpress.com/indepth/columns/into-the-fray-martin-sherman/into-the-fray-israels-high-court-when-legality-loses-legitimacy/2019/03/26/
JNS: https://www.jns.org/opinion/israels-high-court-when-legality-loses-its-legitimacy/
JEWS DOWN UNDER: https://jewsdownunder.com/2019/03/22/into-the-fray-israels-high-court-when-legality-loses-its-legitimacy/
MEDIUM: https://medium.com/@martinsherman/into-the-fray-israels-high-court-when-legality-loses-its-legitimacy-68d5c9d1bd07
RICHSWIER: https://drrichswier.com/2019/03/22/israels-high-court-when-legality-loses-its-legitimacy/

Several short excerpts:

 In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded… [T]he court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda… – Prof. Ran Hirschl, Towards Juristocracy, Harvard University Press, 2004.

The public is further losing its faith in…the legal system, with only 36 percent of the Jewish public expressing confidence in the courts…– “Public’s faith in Israel’s justice system continues to plummet,” Haaretz, August 15, 2013.

A candidates’ list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the objects or actions of the list or the actions of the person, expressly or by implication, include one of the following: 

  1. negation of the existence of the State of Israel as a Jewish and democratic state;
  2. incitement to racism;
  3. support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel. – Basic Law Knesset– Article 7A

 

This week, the High Court took another giant step towards further undermining the already dwindling public confidence in the Israeli judiciary.

 

Eroding confidence in judiciary

 

On Sunday (March 17) it overturned a previous decision by the Knesset’s Central Elections Committee, and ruled to prohibit the participation in the upcoming elections of the hardline Right-wing candidate, Dr Michael Ben Ari, while permitting that of the undisguisedly anti-Zionist list “Balad” and the self-professed anti-Zionist candidate, Ofer Cassif. In doing so, High Court once again underscored the growing divergence between the average man-in-the-street’s perception of common-sense and sense of justice, on the one hand, and many judicial rulings, on the other. But more on that a little later

Right-wing candidate Michael Ben-Ari and anti-Zionist Ofer Cassif

Over the last two decades, there has been a dramatic erosion of the public’s faith in the Israeli judiciary, in general, and in the High Court, in particular. Thus, according to an ongoing study at Haifa University, the confidence of the Jewish population in court system plunged from 61% in 2003 to a mere 36% in 2013.

A later study found that, overall, public confidence in the High Court plummeted from 80% in 2000, to 61% in 2014, to just 49% in 2017. Commenting on these findings, Einav Schiff, of the mass circulation daily Yedioth Aharonot, wrote “This isn’t a slip or a drop, it’s a collapse.”

 

He warned: “Needless to say, the High Court’s image among the public cannot remain as it is now. Eventually, there will be a political constellation that could enable another constitutional revolution.”

 

“…crass and misguided interference in Israeli democracy”

Schiff’s diagnosis proved a prescient prognosis of Justice Minister Ayalet Shaked’s outraged reaction to the High Court’s decision, which she labelleda crass and misguided interference in the heart of Israeli democracy”, and pledged to revolutionize the method by which High Court judges are appointed.

Justice Minister Ayelet Shaked: “…crass…interference in the heart of Israeli democracy”

At the top of her list of planned measures was the elimination of the judicial appointments committee for the High Court, in which sitting justices have, in effect, veto power over new appointments to the High Court.


Clear contravention of the letter of the law

Clearly, the recent ruling of the High Court was the outcome of “minority political groups” inducing review—indeed, reversal—of “majoritarian decisions” by a contrary judicial body. But in several important aspects it was a particularly striking case of court intervention in the democratic process…For while the rationale for barring the anti-Zionists candidates, Balad and Cassif, was, in effect, almost self-evident—and indeed un-denied by them, the rationale for barring the Right-wing candidate, Ben Ari,  was largely a matter of inferred interpretation, which was disputed by him. 

Arab enmity not Arab ethnicity

Yet despite these incontrovertible violations of Article 7A of Basic Law: Knesset, the High Court—almost inconceivably—overturned the Knesset Central Elections Committee decision, ruling that Cassif could participate in the upcoming elections.

However, when it came to the far Right candidate, Ben Ari, things were very different. Accused of racism because of his harsh denunciation of the Arab sector in Israel and his blanket allegation of pervasive lack of Arab loyalty to Israel as the nation-state of the Jews, Ben Ari explained that that his attitude was not determined by the Arabs’ ethnic origins but by the Arab’s political enmity to Israel…

Saving the judiciary from itself

The High Court decision produced outrage among Right-wing Knesset members who vowed to take action to curtail judicial intervention in the decision-making process of elected bodies…The judicial system will disregard these rumblings at its peril. For when judicial rulings are overwhelmingly at odds with public perception of common sense and justice, it cannot but lose the very credibility imperative for it to function


High Court justices would be well advised to heed the caveat that when legality loses its legitimacy, the entire edifice of the rule of law is imperiled.

As usual your talkbacks/comments/critiques welcome,

Best wishes,

MS

 

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