Israeli Justice in Retirement Speech Urges Resilience Against 'Unjustified Assaults on the Court'

Netael Bandel
Netael Bandel
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Justice Hanan Melcer (center) at the Supreme Court in Jerusalem, on Monday.
Justice Hanan Melcer (center) at the Supreme Court in Jerusalem, on Monday.Credit: Emil Salman
Netael Bandel
Netael Bandel

Supreme Court Vice President Hanan Melcer said on Monday in his retirement speech that he hoped the judicial branch would continue to be strong, and called on judges to protect the court from unjustified attacks.

“The court must continue to be the last refuge of citizens who have a quarrel with the government,” he said in remarks at the Supreme Court in Jerusalem.

“When I came, the prosecution and sometimes even the court treated the position of the government as if it were that of the state, while I reiterated that the state consists of three branches: the Knesset, the government and the judicial branch and no one, no authority, has the right to speak in the name of the government as such,” Melcer said.

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Melcer said that during his term he has seen a policy of checks and balances and that “the independence of the judicial branch has been preserved,” noting that proposed legislation to allow the Knesset to override Supreme Court rulings has not passed. “I hope this situation will continue…we must continue to act without fear and without bias and respect those who came before us in the great legal heritage built in this building,” the retiring justice said.

Melcer thanked Supreme Court President Esther Hayut, with whom he said he worked “in full cooperation in a difficult period, during which time there were unjustified assaults on the court.” Melcer added: “We knew that in the end truth, law and justice would prevail, but the battle is not over, and you must continue it,” he said, addressing the assembled justices.

Melcer said the “heads of the other branches as well as the public should realize that Israel’s judges bring peace, quiet and tranquility to Israel.”

Hayut noted the challenges to society presented by the pandemic, calling it “a test for every one of us, and as a society.” Society’s ability to maintain and protect democratic values has been put to the test by the coronavirus, Hayut said. At this time these values “require particularly delicate balance – the right to life versus the right to freedom of expression and movement; the right to heath versus the right to privacy.”

Hayut added that Israelis are also being tested “for our ability to respect the institutions of government, the rule of law and the key principle it requires of us – that all are equal before the law.”

Israel Bar Association President Avi Himi said: “Today you say farewell to the Supreme Court under constant and unprecedented assault…as are the rest of the government institutions under attack by politicians, all out of political and sometimes even personal strategy.” Himi expressed concern that public faith in the judicial system is on the decline. “So I say here loud and clear: The law enforcement and justice system in Israel is honest and trustworthy…Israeli democracy relies on the independence of the judicial branch, which guarantees the rights of minorities.”

Melcer’s final ruling

Melcer chose in his final hearing to rule on a petition against the actions of the state prosecution’s cyber unit with regard to social media. He ruled against a petition from November 26, 2019 which asked the court to require the unit to cease requesting from social media, including Google and Facebook, to voluntarily delete thousands of posts or restrict access to them, or to suspend some accounts. According to the petitioner, Adalah, the Legal Center for Arab Minority Rights, such censorship of content is done without authority or the right to a hearing. The court rejected the petition saying that the requests are voluntary and the petitioners did not show proof that freedom of expression was being curtailed. While the cyber unit was not without problems, it was essential for public order, the court ruled, and instructed the unit to document its activities.

Adalah responded that the ruling permitted the cyber unit to “continue without any legal authority and thus impair basic rights. We can only regret that the heritage the court vice-president chose to permit in this ruling is that of major harm to freedom of expression, and no less so the basic principles of rule of law and separation of powers.”

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