Opinion

Israel’s High Court Must Save Itself

Supreme Court President Esther Hayut and High Court of Justice Ofer Cassif at the Supreme Court, Jerusalem, March 13, 2019.
Olivier Fitoussi

It’s almost painful to see how interviews with Benjamin Netanyahu before the election are being pulled out of the archives. “Of course not,” he said when asked if he planned to promote a bill after the election that would grant him immunity in the corruption cases against him. Anyone believing this “of course not” probably also believed similar statements he made. Some people are simply incorrigible.

Netanyahu is promoting an anti-constitutional revolution. He aims to curb the powers of the High Court of Justice to grant himself permanent immunity, but also to divert attention from talk about his corruption, focusing attention on the role of courts in a democracy. In either case the result is the same: the obliteration of the judiciary’s independence. Judging by an agitated speech by Supreme Court President Esther Hayut, the battle has already been decided.

>> Read more: Netanyahu's on a quest for survival, and the hell with Israeli democracy | Analysis ■ If need be, he’ll replace the state | Opinion ■ How a bill to override Israel's top court would help Netanyahu | Explained 

For many years I tried to protect the Supreme Court and was very careful when criticizing it. I believed that democracy needs the High Court’s protection, even though many of its rulings have turned my stomach. But the truth must be told – over the years, High Court justices supported most of the wrongdoings and corruption linked to the occupation, and now this corruption is coming back to haunt them.

High Court judges approved the very first settlements, the exploitation of Palestinian natural resources and the plethora of expropriation methods devised by the settlers. In some cases, the judges were convinced that justice lay in those decisions. In other cases, it seems it wasn’t justice that guided them, but a desperate attempt to evade criticism. Even in the few cases where the court achieved justice for Palestinians, such as in the evacuation of the settlement of Amona, the court let the state delay hearings and the evacuation for years. This was justice delayed under the auspices of the court.

Avoiding confrontation didn’t halt the attacks from the right. The High Court is an easy punching bag. It’s easy to pass foolish and unconstitutional laws and wait for the court to fix things. It’s easy to accuse the justices of not adhering to policies that were never intended to be followed, while placing the courts’ independence at risk.

I have no intention of explaining things to people like conservative author and broadcaster Erez Tadmor, who began a tweet this week about a former Supreme Court president: “If Aharon Barak were a more educated person.” I don’t intend to explain to such critics the separation of powers. For some people it’s too late. But such a separation is the basis of any strong democracy, and you don’t need a course in constitutional law to understand that a prime minister facing three indictments can’t poke around the innards of the judiciary.

Israel is marching toward a Hungarian-style democracy with “people’s courts” of its own. The previous government already did all it could to eliminate any oversight of it. We can expect more of the same, only with fewer inhibitions. The legislation planned by the government being formed means the eradication of the vestiges of Israeli democracy.

The Supreme Court justices can keep playing the game they’ve been playing, giving the occasional “pointed speech” and hoping someone else comes to their rescue. But any attempt to pretend that Israel is now in a normal situation is a superficial approach indeed. If they keep trying to walk between the drops, their end, and ours, will be to drown. If the justices wish to preserve a foundation of the legal system, they must refuse to continue serving as a fig leaf and go on strike. Anything else is tantamount to surrender. This is a terrible choice, but the only one they have.