Opinion

Here Lies the High Court of Justice, of Blessed Memory

B. Michael
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Israel's High Court of Justice, February 5, 2020.
Israel's High Court of Justice, February 5, 2020.Credit: Ohad Zwigenberg
B. Michael

Did you know, dear readers, why the High Court of Justice is referred to by that name? What is so special about this court that it gets the word “justice” as part of its name? Are there unjust courts in the land? Of course not. But the High Court of Justice is the only court which isn’t just concerned with the law, but also with justice. It’s the only court permitted to order that an action be carried out or avoided out of considerations of justice. It’s the only court able to operate in the broader realm of “justice,” that elusive and lofty dimension that sometimes extends beyond the strict letter of the law.

Which is why, in the absence of a constitution, it is the only entity that can take a stand against a leadership drunk with power and demarcate its boundaries.

British jurists, knowing that “justice” is very hard to formally define, formulated a number of maxims, known as Maxims of Equity, that seek to make order in this complexity. One maxim states, “He who comes to equity must approach the court with clean hands.” This means there must be a full disclosure of all the facts and interests relating to the issue being adjudicated. Ostensibly, this rule is directed at the petitioner. After all, he’s the one who approached the court to seek justice. But practically speaking, it must also apply to the respondent. He is also asking the court to do him justice and dismiss the petition. He, too, must approach the court with clean hands.

One can accuse Prime Minister Benjamin Netanyahu of many things (and this has been done), but no one can accuse him of having clean hands. One can confidently guess that he never bothered to tell the High Court justices of all the personal interests he had in this issue. But they didn’t really need that. They well knew that over the years, Netanyahu has repeatedly proven that he has used the seat of prime minister as a pickaxe with which to dig a tunnel to escape prosecution. They know that for years he has exploited his position to discredit, lie, deceive, incite and mock the legal and judicial authorities, to evade the arm of the law; that for at least a year and a half he has been threatening that same tribunal from which he now sought permission to return to his seat, so that from there he could continue to crush that same tribunal.

He asked for it, and he got it.

It’s as if some suicidal spirit had seized the court. As if the justices had forgotten that they could also make use of the “justice” entrusted to them. As if, aside from all the other inconsistencies in their decision that shout to the heavens, his unclean hands weren’t enough to have him tossed down the stairs of the court building. The honorable justices are surely familiar with another maxim, “He who seeks equity must do equity.” One can’t accuse Netanyahu of that, either.

Indeed, it was all predictable, but now it has the stamp of authority. The herd finally got its immunity and from now on, anything goes. With the collapse of its position, its power, its authority and most importantly the justice entrusted to it, the High Court of Justice has breathed its last breath. It’s dead. Perhaps it committed suicide, perhaps it was murdered, perhaps it dropped dead of exhaustion. Perhaps, it, too, is one of the victims of the occupation, which steadily erodes and corrupts everything of value.

Perhaps – who knows – the High Court of Justice has merely sunk into a post-traumatic coma, from which it will awaken someday. But perhaps not. Because now it’s too late.

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