The High Court of Justice’s rejection of the Migron compromise prompted an understandable sigh of relief among portions of Israel’s public. But don’t let the ruling blind you. The trumpets of victory and expressions of elation mainly reflect the abyss into which Israeli sovereignty has plunged.
“The High Court − the bastion of Israeli democracy that is defending itself against forces attacking from within − once again proved yesterday how strong and necessary it is,” editorialized Haaretz on March 26. Maybe that’s true, but the half-empty part of the glass is a weak state which time after time pushes its highest court into a corner, where the court has to protect the country from its absurdities and folly. That’s not a good place for the highest court in the land, and is a gloomy attestment to Israel’s problematic circumstances.
In itself, Migron has no real significance. The settlement movement will proceed onward whether or not the outpost be vacated in August. There’s no point in depicting the High Court as a brave, determined warrior against the settlement movement: The important documentary film “Rule of Law,” to be screened on Sunday on Channel 8, alludes to the Supreme Court’s contribution toward the validation of the continuing national folly, the settlements. The Migron farce’s sole import is the way it reflects, in a nutshell, the illness that afflicts sovereign Israeli governance.
For over a decade, three branches of government have attended to a wanton violation of the law, an undertaking whose illegal essence is not in dispute, even by the flexible standards of the occupation, and ultimately only the High Court enforces policy actions that should have been self-evident from the outset.
Starting with Aharon Barak’s term as Supreme Court president, much has been said about his brand of “judicial activism.” The time has come to talk about the flip side, governmental passivity: the total lack of will and initiative demonstrated by the political establishment. Governance that does not want to take responsibility and correct what needs to be corrected − to pay the price, reach a decision and lead.
Many politicians complain about the “system.” Yet a “system” cannot be repaired through inaction and weakness. The state of affairs was manifest recently when the High Court functioned as the last sanctuary before total collapse regarding IDF exemptions. The court nullified the disingenuous Tal Law, the dubious, temporary procedure by which draft exemptions were conferred on a political-religious basis.
In this case as well, trumpets of glee were sounded, even though the ruling left much room for concern: By a razor-thin margin, and on the basis of mostly technical-procedural argumentation, an expanded panel of High Court justices demanded that the legislative and executive branches carry out their most elementary duties.
Governmental passivity, of course, is not happenstance in its choices. It always operates as a counterweight to intimidating power bases on one particular side of the political map.
The problem is that this passivity percolates downward, to the enforcement authorities. It is hard to separate the passivity trend from the police’s disgraceful response to events at Jerusalem’s Malha Mall last week. This was not yet Kristallnacht, but a frightening mini-pogrom: hundreds of unruly racists running amok after their soccer team had won a match, and expressing their joy at the expense of a handful of Arab maintenance workers. Security forces which reached the scene acted in a listless, apathetic way, and didn’t carry out a single arrest or detain a suspect for questioning, even though there was an abundance of witnesses and security camera documentation.
Such inaction is not a case-specific malfunction; instead, it is a systematic failure, a symptom of a mortal national illness.
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