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A Hostile Take Over of a Hostile Institution

Gideon Levy
Gideon Levy
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Chief Justice Esther Hayut and fellow Israeli Supreme Court judges at the High Court in Jerusalem earlier this month.
Chief Justice Esther Hayut and fellow Israeli Supreme Court judges at the High Court in Jerusalem earlier this month.Credit: RONEN ZVULUN/ REUTERS
Gideon Levy
Gideon Levy

The new justice minister, with the backing of the prime minister, is carrying out a hostile takeover of the Supreme Court. The uproar that this has provoked is understandable, but it ignores the fact that the takeover attempt is targeting an institution that is hostile to democracy. Yes, I really mean that. The Supreme Court, whose attempted takeover has sowed such panic among all democracy-lovers, played a decisive role in destroying Israeli democracy.

This pathetic battle over the character of Israeli democracy, a democracy intended solely for the privileged, is the joke of the year. It’s a tempest in an apartheid teacup: Our democracy-for-Jews-only is in danger. Save it! All of the pathos and every piece of artillery has been pulled out to save this fake democracy.

It is true that Yariv Levin, with the backing of Benjamin Netanyahu, is threatening to subordinate the judicial branch of government to the legislative branch and turn Israel into a unitary state, with a single branch of government. Obviously, that is not a democracy. But it is also not a democracy when 5 million people are living under its auspices with no citizenship and no rights, with the approval of the High Court of Justice – that is, the Supreme Court sitting as a constitutional. Consequently, the hysteria that has erupted over the planned injury to the Supreme Court is bizarre and even outrageous.

Now of all times, at its most difficult moment, we must not forget the Supreme Court’s shameful collaboration with the occupation. This isn’t a matter of schadenfreude. Through its support for the occupation, the court sowed the poisonous seeds whose fruits we are reaping today. If it had refused to legitimize the occupation back when it had the power to do so, there would be no Itamar Ben-Gvir, there would be no settlements and there might even be no occupation.

Now of all times, at its most difficult moment, we are obligated to remember that this is an institution that did not protect Israel against the occupation, so there is no reason for us to protect it today, as if any harm done to it would put an end to our nonexistent democracy. Israel is no longer a democracy. It’s impossible to view it as a democracy with the exception of the occupation: The occupation has become an inseparable part of the state, that defines its evil system of government – apartheid with the High Court’s approval.

What did the High Court do to protect democracy against the occupation? Almost nothing. What could it have done? Almost anything. Had it not legitimized the occupation’s crimes from their inception, approved almost everything the defense establishment did, closed its eyes and silenced its voice, Israel would have been different. Supreme Court President Esther Hayut, and even more so her predecessors, should have delivered her resounding speech long ago – against the crimes of the occupation.

Because the Palestinian people, which lives under occupation, received no relief from this court, the court betrayed its trust. A court that never took a position in principle against the legality of the settlements; that approved administrative detentions, aka detention with trial; that delayed for years before graciously agreeing to take a stand against torture; that approved mass deportations, like the deportation of 400 Hamas members in 1992, and home demolitions; and that turned its face against international law is a court that sabotaged democracy.

It’s actually rightists and settlers who ought to be grateful to this court for having legitimized the occupation for them. The left should have come out against it long ago.

Subordinating the judiciary to the legislative branch, and thus effectively to the executive branch, is obviously undemocratic. But that’s exactly what happened with the occupation. The Supreme Court functioned more like a military court than like a gatekeeper. It was the obedient servant of the executive branch. It’s impossible to sing paeans of praise to it now and mourn the fact that it is being weakened.

Great danger now lies ahead for civil rights, freedom of expression and other freedoms in Israel. For instance, we will quickly find ourselves with a Knesset for Jews only, and that will be only the beginning.

The danger is great and very grave, but one of the original sins whose fruit Israel is now reaping was the justice system’s sweeping legitimization of the occupation. That’s where it all began. What followed was inevitable.

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