Letter from Jerusalem: People’s Court
When rulings by a multifunctional head judiciary challenge executive action in a country lacking a constitution, controversy sometimes follows.
On October 6, the Israeli Supreme Court handed down a precedent-setting decision, directly confronting the executive branch and intervening in tactics used by the armed forces in battling terror. Ho hum. In no time, the story dropped off local front pages. The foreign press paid little attention.
The ruling dealt with what the Israel Defense Forces called the “advance warning procedure”: If soldiers were trying to arrest terrorists in the West Bank, they could ask a local Palestinian to go to the house where the wanted men were hiding and warn them to turn themselves in. The Army argued that this could prevent a firefight and save lives, including those of local residents.
Lawyers for six Israeli and Palestinian legal-advocacy groups said the tactic violated human rights and international law: It pulled residents of land under military occupation into armed conflict, endangered them and violated their dignity. Nor did it matter that they had to agree to carry the message—who could tell if the consent was really given freely?
Led by chief justice aharon barak, the court banned the procedure. Pay attention: It ruled on the rights of noncitizens, in territory not part of sovereign Israel, during a war on terror—the equivalent of the United States Supreme Court intervening in what the American military does in Guantánamo, or in Baghdad. The issue of the court’s authority did not arise. No one would have thought to question it.
Nor would anyone locally have thought to note that the case was not an appeal. The advocacy groups had gone directly to the highest court in the land, which was strictly business as usual. So was the court’s willingness to plunge into the realm of human rights, even though Israel has, at most, only a piece of a beginning of a written constitution. Really, nothing new about that.
One key to what made the “advance warning” case so absolutely normal—despite its far-reaching impact—and so uniquely Israeli, is the heading at the top of the decision: “The Supreme Court, sitting as the High Court of Justice.” Behind those words lies the strange history of a colonial institution that morphed into democracy’s watchdog. The other key is a trailblazing freedom-of-the-press opinion written half a century ago—one that leading Israeli legal commentator Moshe Negbi describes as “one of the great contributions of American Jewry to Israel.”
The “High Court of Justice” refers to one function of Israel’s Supreme Court: hearing requests by individuals for the redress of alleged injustices by the government. That function, Negbi explains, was created by the British when they ruled Palestine. Most judges on lower courts were Jewish or Arab. But Mandatory Palestine’s highest court had only one token Jew and one Arab; the other justices were British—and the law channeled any challenges to official actions of the Mandatory government directly to the court that could be relied on to protect British interests.
With independence the institution remained, but now Israeli justices heard those direct requests. Normally, three justices sit on each case; occasionally, the panel is larger. Designed to protect colonial rulers, the High Court of Justice—in Hebrew, Beit Din Gavoa Letzedek, or Bagatz—now empowered the common citizen. No other developed democracy, Negbi says, has a parallel arrangement.
On paper, though, the court had little leverage. Israel had no constitution, no bill of rights. On what grounds could executive action be challenged?
The answer came in Kol Ha’am v. the Minister of Interior in 1953. Kol Ha’am (The People’s Voice) was the Hebrew newspaper of the Communist party. Along with its sister paper in Arabic, Al-Ittahad, it published an editorial attacking Prime Minister David Ben-Gurion’s reported willingness to send Israeli troops to fight on the side of the United States if an American-Soviet war broke out. The report was false.
Nonetheless, Ben-Gurion’s interior minister ordered Kol Ha’am shut for 10 days and Al-Ittahad for 15, exploiting a draconian Mandate-era press law.
The papers turned to the high court. heading the panel that heard the case was American-born-and-educated Shimon Agranat, who wrote the unanimous opinion. It overturned the minister’s order and—with daring legal reasoning—established democratic rights and the court’s power to protect them.
Agranat began philosophically, citing John Milton’s classic essay on freedom of the press and John Stuart Mill’s “On Liberty.” Then he argued that Israel’s declaration of independence expressed “the people’s vision” of a democracy. Israel could therefore learn from other democracies. With that, Agranat proceeded to introduce American precedents based on First Amendment law. The decision, says Negbi, was judicial “super-activism.” It may mark the moment when Israel avoided the fate of other postcolonial nations that slipped into autocracy.
Kol Ha’am set not only a legal but a literary precedent. A High Court discussion often resembles a novel of ideals, mixing gritty narrative and philosophy. Lacking a constitution as an agreed foundation, lawyers and judges are more likely to head for the deepest meaning of the issues. In the so-called Brother Daniel case of 1962, for instance, they searched for the meaning of “Jew” as used in the Law of Return. Did that word—and the right to immigrate to Israel and be officially registered as a Jew—apply to a man born Jewish, who’d fought the Nazis as a partisan, but who had become a Catholic monk?
One justice, Haim Cohn, made the matter subjective: “the right to Israel is given to any person who declares he is a Jew returning to his homeland….” Technically, Cohn was insisting on strict construction of the law, which stated no objective standard of Jewishness.
Philosophically, he was divorcing Jewish nationality from religion. The majority rejected that view, but also put aside the position of Jewish religious law, which says a Jew cannot cease being a Jew. “Jew” in civil law, ruled the court, meant what it did in daily Jewish speech. And, therefore, someone who “cuts himself off from national past by changing his religion ceases being a Jew….” Paradoxically, the secular, ethnic meaning excluded someone who changed his religion.
Eight years later, in shalit v. the minister of interior, Bagatz returned to the problem, after an Israeli Jew married to a non-Jewish woman asked to list the nationality of his children in the population registry as Jewish. Nine justices wrote opinions, which read as a seminar on Jewish identity. This time, the subjective view won. The state “cannot dictate” to a person a national identity “different from that which he sincerely believes he belongs to,” one justice wrote. Shortly after, the Knesset amended the law by defining a Jew as the child of a Jewish mother or a convert to Judaism. That demonstrated the High Court’s weakness: A simple legislative majority can erase its decision—or, theoretically, limit its powers.
The Knesset never touched the precedent set in a 1972 case, when Bedouin leaders in then-occupied Sinai challenged an expulsion order. The court accepted the Army’s argument that the expulsion was militarily justified—after noting that the state had not contested the court’s jurisdiction. The opening for residents of the territories to seek redress from Bagatz thereby entered Israeli law.
Since the 1990’s, the High Court’s looming presence has only grown. One reason is a 1992 “basic law”—intended to be one piece of a future constitution—guaranteeing “human dignity and freedom.” Another reason is Barak, an outspoken advocate of judicial activism and of interpreting the 1992 law as granting the Supreme Court judicial review of laws enacted from that time on.
Controversial issues on the Bagatz docket at this writing include whether the state must recognize same-sex marriages performed abroad and the legality of the Army’s policy of “targeted killings” of suspected terrorists.
Barak’s activism has taken fire from political and legal critics. Most prominent among the latter is Hebrew University of Jerusalem law professor Ruth Gavison, known for her view that the Barak court has arrogated too much power, giving it more authority than the law. But liberal critics say the court’s activism is less than meets the eye. Decisions in controversial cases get put off for years, they argue. A recent article in the daily Ha’aretz noted that three years have passed since the court was asked to throw out the law allowing draft exemptions for yeshiva students.
Negbi describes the problem as “power politics.” The court, he suggests, may be avoiding head-on collisions with the legislative and executive branches to avoid a backlash in the form of a Knesset vote to limit its power. Without a constitution to protect it, says this reasoning, the court is cautious.
Nevertheless, the court has ruled on an issue of paramount public and even international concern—the security fence Israel is building. While the fence is meant to keep terrorists out of Israel, it does not follow the border, or Green Line, with the West Bank. Instead, it loops around settlements, putting them on the Israeli side.
In June 2004, the court ordered a change in the fence’s planned route near Jerusalem, where it would have cut Palestinian farmers off from their land. The route, it ruled, violated “the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants.” In a new case last September, Bagatz went further, ordering that a piece of the fence already built be moved because it cut five Palestinian villages off from the rest of the West Bank. On the other hand, it upheld the legality of building the fence so that it protected Israeli settlements.
But the decision may contain a hint of threat. “It is not at all relevant,” Barak wrote, “whether such settlement [in the West Bank] accords with international law…. For that reason, we have expressed no opinion on this question.” It’s the first time, Negbi says, that the court has “put a question mark on the legality of the settlements.”
If the High Court of Justice ever does rule explicitly on that issue, it will certainly seize international attention. Even so, foreigners are unlikely to notice the remarkable institution handing down the decision. As for Israelis, they take it for granted.
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