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

By Martin Sherman

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.

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

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 labelled “a crass and misguided interference in the heart of Israeli democracy”, and pledged to revolutionize the method by which High Court judges are appointed. 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.

Instead, according to her proposed reform, justices would be appointed at the recommendation of the Minister of Justice, who would bring a candidate for approval by the cabinet and the Knesset, with a public hearing being conducted for High Court justices.

Clearly, if implemented, this measure could go some way towards addressing the kind of perceived disconnect, described by Prof. Hirschl in the introductory excerpt (see above), between the world views of the judiciary and the democratically elected bodies of government.

Elsewhere in his book, Hirschl articulates precisely the process of judicial override of decisions made by elected bodies, as reflected in the verdict to overrule the Knesset’s Central Elections Committee. He writes: “…political representatives of minority groups [such as the anti-Zionist Arab factions and their members – MS] have come to realize that political arrangements and public policies agreed upon in majoritarian decision-making arenas [such as the Knesset’s Central Election’s Committee—MS] are likely to be reviewed by an often hostile Supreme 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.

Thus, the Balad platform openly rejects Israel as a Jewish and democratic state, explicitly declaring its aspirations to convert into it into a “state of all its citizens”—which, one might have thought—given stipulation of Article 7A (1) of the Basic Law: Knesset (see introductory excerpt above)—should, on its own, be enough to disqualify it from participation in the Knesset elections. Yet for some reason the Justices of the High Court chose to disregard the unequivocal letter of the law.

Moreover, with regard to Ofir Cassif, the candidate for the “non-Zionist” Hadash list, it is not only his blatant self-professed anti-Zionism that should have prevented his candidacy, but his support for armed conflict against Israel. Indeed, even the judges—or at least some of them—seem to acknowledge this.

Thus, when Justices Noam Sohlberg, David Mintz and Neal Hendel pressed Cassif’s attorney on Cassif’s statements approving attacks on IDF soldiers, he tried to rebut them by claiming his client was discussing the matter on an academic philosophical level and not on an operational one. In response, Justice Hendel retorted that it was unrealistic to expect average readers to understand Cassif’s articles as if he does not support armed conflict.

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. Indeed, this point was made by Ben-Ari’s representative who declared that his client had “no problem” with Arab Israelis who are loyal to the State of Israel as the state of the Jewish people.

Without going in the debate of whether Ben-Ari—himself of Afghan-Iranian origins—were inappropriate or in poor taste, it does seem a bit of a stretch to brand them as racism—particularly as Ben-Ari has served in the Knesset previously (2009-13) without any charges of racist conduct being brought against him. Indeed, if charges of racism, a crime punishable by up to ten years imprisonment by Israeli law, could be substantiated, one can only wonder why Ben-Ari has not been prosecuted for them!

Yet, despite his denial of any racist intent in his recriminations against the Arab population, the High Court ruled to interpret Ben-Ari’s declarations as racism and to prohibit his participation in the elections, overturning the decision of the Knesset Central Elections Committee to permit it.

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.

For example former Defense Minister of Yisrael Beitenu  fumed: “it is absurd that the court would intervene in decisions of the Central Election Committee, to allow Ben-Ari to run, and to ban those who hate Israel…I will propose a law in the next Knesset to ban the court from intervening in committee decisions. We will do everything we can to prevent the Arab fifth column from getting into the Knesset altogether.”

Echoing similar sentiments was the newly appointed head of the Jewish Home party, Rafi Peretz, who issued a statement saying: “In the State of Israel, there is democracy in appearance only. The judiciary has taken the  Right to choose for Israeli citizens in an unprecedented manner. Kassif and Tibi [who served for years as advisor to arch-terrorist Yasser Arafat] are in, but Ben Ari, a Zionist Jew whose sons serve in the IDF, is out.”

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

Indeed, two talkbacks, on a well-trafficked news-site, reflect this danger:

“Ahmed Tibi is a champion of Yasser Arafat, the worst mass murderer of Jews since Adolf Hitler. Disqualifying Ben-Ari and not Tibi exposes a very alarming anti-Jewish bias in the High Court.”—Jacob

“…by approving [C]assif but banning Ben Ari, our esteemed judges just ensured more votes for the Right. Are they on the payroll of Bennett/Shaked campaign?–Alexander

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.

Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.