Before continuing the uproar created by Justice Minister Amir Ohana and the attacks on him following his comment that “High Court of Justice rulings needn’t always be followed,” it would be worth asking if the state itself obeys all High Court rulings.
In 1951, the High Court issued an order to allow the uprooted residents of the northern villages of Ikrit and Biram to return to their homes. Not only was that decision not implemented, but two years afterward, in contempt of the High Court, Ikrit’s lands were transferred to the Development Authority and registered as state land, while Biram was blown up and its homes destroyed.
In other words, if the government doesn’t uphold a High Court ruling and actually does the opposite, why disparage the minister? I know very well that the intent behind Ohana’s declaration is bad for the rule of law, but nevertheless it speaks to me. Isn’t he telling the truth, at a time when the High Court orders Arab residents replaced by Jews at Umm al-Hiran? Isn’t there a black flag over that ruling and similar ones? What’s the difference between an officer who issues an illegal order and a judge who makes an illegal or immoral ruling? Isn’t a green light to demolish the home of an entire family because of the act of one son collective punishment, which is legally invalid? Indeed, there isn’t one black flag but a forest of black flags hovering over many rulings by the judicial system relating to the Arab population in Israel and the occupied territories.
Nevertheless, the problem isn’t the judges, but the world in which they live. In the end, even judges are products of their environment, and if the mainstream in Israeli society doesn’t only support but even pushes the High Court to make decisions that are immoral and contradict international law, like the building of settlements and the evacuation of residents and the approval of dubious transactions, is it any wonder that judges, who are part of their people, toe that line, sometimes enthusiastically?
Justice Dalia Dorner, when she heard a petition 20 years ago requesting that the state implement the High Court decision on Ikrit and Biram, wrote that the state has the right not to fulfill a government promise if the circumstances demand it, noting that then-Prime Minister Ariel Sharon had declared that the return of the displaced residents could be a problematic precedent for the Palestinian right of return. Dorner, who is considered a liberal justice, favored the ideological motive over the legal principle.
If instead of Dorner there had been a judge without an ideological background, Zionist in our case, he would certainly have ordered the earlier High Court ruling implemented for reasons of justice: No man should be expelled from his home. A judge free of ideology would not be concerned that their return would be a precedent. After all, what’s wrong with the court setting a precedent for doing justice? The residents of both villages are citizens of the state, but Dorner views their return as an existential threat to the state, the way Israeli society perceives the “right of return.”
This example illustrates that High Court justices can’t rule other than in the spirit of the prevailing atmosphere. That’s why the key to change is not in the hands of the courts, but in the hands of the media, social movements and political parties that determine the political discourse. And if we are even more precise, the key is now in the hands of those who pocketed 1,123,929 votes in the last election – namely, Kahol Lavan. If Kahol Lavan’s leaders want change, there will be change. To our regret, however, they want to be Likud’s Siamese twin.
On the eve of elections there is no prospect of peace, equality or democracy when Avigdor Lieberman, who pollutes the atmosphere with his racist statements, is the message conveyed by Kahol Lavan, which has gone out of its way to embrace him, and when unity on the basis of Likud’s principles (just without Benjamin Netanyahu) is what unites most of the political system.
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