Why Israel's High Court Is Considered Left-wing

The Kadima faction petitioned the High Court of Justice against the legislation of a two-year budget. The president referred the petition to an expanded nine-justice panel. With all due respect, the president erred. She should have rejected the petition out of hand.

Menachem Mautner
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Menachem Mautner

The Kadima faction, through MK Ronnie Bar-On, petitioned the High Court of Justice against the legislation of a two-year budget. The president, Justice Dorit Beinisch, referred the petition to an expanded nine-justice panel. With all due respect, the president erred. She should have rejected the petition out of hand.

When a Knesset member petitions the High Court of Justice, a distinction should be made between two situations.

If he claims that a personal right of his has been violated (by the Knesset speaker or the attorney general, for example ) he should be able to petition like anyone else. But when an MK wants the court to rule on a political matter, the court should reject the petition.

Political matters should be debated in the Knesset, the media and academia, not in the High Court of Justice. MK Bar-On should have presented his argument to the public for debate, not to the court.

I found that 250 MKs petitioned the High Court between 1979 and 2005. The most petitions were submitted by Yossi Sarid, Ran Cohen, Avraham Poraz, Mohammad Barakeh, Amnon Rubinstein, Haim Oron, Ofir Pines-Paz and Zahava Gal-On. The "petition champion," Sarid, openly described his actions in an August 2004 article in Haaretz, aptly titled "We foisted everything on the High Court of Justice."

MKs from right-wing parties also petitioned the court, but far less frequently. What's more, I found that while the left-wing MKs almost always raised political arguments in their petitions, the right-wing MKs usually claimed personal harm to a Knesset member.

Every one of the petitions, like MK Bar-On's, was accompanied by extensive media coverage.

In an article published in the United States, Yoav Dotan and Menachem Hofnung wrote that this was a major consideration behind the petitions.

I was told that left-wing MKs who consistently failed to win elections shifted their political activity to the High Court, where they found a faithful partner.

The High Court of Justice also gained publicity. Since most of the petitioners were left-wing MKs, and since the petitions drew media coverage, the public got the impression that the High Court of Justice identifies with a group of left-wing Knesset members.

It is an open secret that in religious and right-wing circles, the High Court is known as "the Meretz branch in Jerusalem."

The High Court should understand that these petitions inflict serious harm. It should change its doctrine regarding the right to a hearing and turn away MKs seeking that it adjudicate political matters.

This will achieve three things. First, it will keep the court from being identified with a set group of MKs. Second, the political, public and academic debate will be enriched. Third, we will learn to think that political questions can be debated, not just decided by means of a legal contest with a clear decision and a clear winner and loser.

Politicians in the U.S. also have tried to take their battles to the court. But the court did not accept their petitions, and sent them to wage their fights in the political and media arena.

Israel's High Court would do well to adopt the stance of its American counterpart, just as it has done regarding a long string of issues.

Prof. Menachem Mautner is a law professor at Tel Aviv University. His latest book is "Law and Culture in Israel at the Threshold of the Twenty-First Century."

Credit: Eran Wolkowski

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