After failing for the second time to protect demonstrators in the gay community, one would have expected the police to do everything in their power to protect this week’s Gay Pride Parade in Be’er Sheva. The moral and legal answer to threats of violence against demonstrators – threats intended to damage the right to protest – must be effective protection for those demonstrators. Otherwise, violence will take precedent over fundamental rights. When the police choose to, they know how to protect protesters – as evidenced by their efforts to protect the Flag Parade through the Old City’s Muslim Quarter on Jerusalem Day.
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But in Be’er Sheva, the police chose to surrender to the threats by opponents and offered instead a different route for the demonstration – a less central one.
Surprisingly, the High Court backed this approach and even suggested its own route.
In doing so it rewarded this act of thuggery with another major achievement: The marchers had to retreat in the face of the aggressors, not only according to the police’s stance but also according to the position of the High Court of Justice, which is responsible for defending basic human rights.
The rule of law has retreated before the threat of violence. And the High Court didn’t suffice with this: It also placed the protesters’ intention to protect themselves from the thugs on the same level as the original threats themselves.
The court declared that changing the course of the route so that it would be less central didn’t interfere with the marchers’ freedom to demonstrate.
The main hearing concerning allegations of a fear of violence, when the court heard from police officers, was held without the presence of the petitioners, and without the petitioners’ participation.
Truly, such a judicial proceeding is not worthy of the name. It was no surprise when the demonstrators decided not to march and opted to hold a protest rally instead. That is how the victory of the thugs was made complete.
I doubt whether the High Court of Justice thought about the consequences of its ruling on the rule of law in Israel, in light of the existence of a society that tends toward ideological violence and for which commitment to the law is not always self-evident.
In reality, the court has formulated a way that allows the ruffians to trample on the right to protest. Even according to the narrowest view of democracy, if freedom of expression is not guaranteed – and the right to demonstrate is part of this – the electoral process becomes meaningless.
The Supreme Court earned for itself the status of protector of fundamental human rights in Israel. The first generation of justices in the court cultivated the judicial declaration of human rights, which expressed the view that these are natural rights and reflect the democratic character of our system of government. The justices who came after the founding generation continued to fortify the status of fundamental rights as the cornerstone of Israeli democracy.
However, the court’s decision to approve the Citizenship and Entry into Israel Law – an emergency order that effectively denied family reunification of Palestinian spouses within Israel – marked a new judicial era.
Along with court decisions not to intervene in the so-called “Nakba” and “Acceptance Committee” laws, and the minimal intervention in the “Boycott” law, these have constituted a change in direction – to a pathetic standard regarding the protection of human rights.
The latest ruling is a significant link in this trend. Its continuation could lead to a loss of public confidence in the court as the defender of human rights. The justices have a heavy responsibility on their shoulders: Do not destroy something that has been so painstakingly built up over the years.
The writer is vice president of the Israel Democracy Institute.