30 August 2017

There are still judges in Jerusalem. For how long?

It is not news that our illustrious Minister of Justice, Ayelet Shaked, is fighting the HCJ (High Court of Justice) for several years. It is not news that she and several other "patriotic" MKs are hell bent to reduce the authority of HCJ, especially its power to strike down the laws HCJ considers unconstitutional*.

The latest flare-up is related to the treatment of illegal aliens.
Minister of Justice Ayelet Shaked attacked Tuesday the High Court of Justice's (HCJ) Monday decision—in which it ruled that illegal aliens refusing to be transferred to a third African country cannot be detained indefinitely—insisting that the principle of Zionsim will not be subordinated to 'a universalistic system of individual rights.'
Of course, as always with Ms Shaked, her unhappiness with this decision caused another eruption of bile, directed at HCJ. Not at the border guards that let the immigrants in, not at the (undefined) authorities that bussed the immigrants to the poor neighborhoods of Tel Aviv and left them there, mostly to cope for themselves. Nope, it is HCJ that is supposed to bear the brunt of her unhappiness, in her superbly demagogic crescendo.
In a speech before the Israel Bar Association conference in Tel Aviv, Shaked addressed the hot-button issue of demographics and the Zionist goal of preserving a Jewish majority in Israel at the expense of human rights for asylum seekers, genuine or otherwise.
Despite the vitriolic protests of some in the crowds, Shaked promised that "Zionism will not continue bowing its head before a universalistic system of individual rights."

"Israel of 2017 is a country that's constitutionally made up of crisscrossing individual rights, without its Basic Laws referencing Israel being the nation state of the Jewish people," Shaked lamented.

"Zionism has become a blind spot for the judiciary," she continued. "Questions concerning it have become irrelevant. National challenges are a judicial blind spot, not at all to be considered in today's climate, and certainly not to be ruled in favor of when faced with individual rights issues.
And of course, it is HCJ that stands in the way of Ms Shaked's dreams.
Shaked said the Israeli judicial branch operates as if in a "dream," adopting a "utopian and universal worldview sanctifying individual rights to an extreme degree and ceasing taking part in the struggle for Israel's very existence."

At this point, she called for an overhaul of the system that enables individual rights to displace the importance of national identity.
I have already dedicated two posts to this particular firebrand's and her colleagues' incessant attacks on HCJ. There is hardly anything to add but a short history lesson. To start with - Menachem Begin's view of democracy:
Begin’s deep commitment to democracy was also expressed in his belief that there is no democracy without the rule of law. In this matter as well, Justice Zamir attested that Begin served as an outstanding role model, who practiced what he preached. This was reflected, for example, in Begin’s respect for the independence of the Prosecutor-General’s Office and for the need to comply with judicial rulings, as evidenced by his saying “there are judges in Jerusalem.” A memorable example is the case of a High Court ruling declaring the Elon Moreh settlement to be illegal. Justice Zamir recalled that at the tempestuous cabinet session that followed the ruling, several ministers demanded that the Court’s decision be ignored. Begin, however, silenced them, declaring that “the courts in Israel have made their decision and the government is obligated to honor and carry out whatever they decided.”
There is more in that document, but let's see a more powerful example.
In 1952, on the eve of the reparations affair that year, the head of the Herut movement, our teacher and leader MK Menachem Begin, put in his writings ("a view of life" as his favorite expression) his view of the three elements of a national liberation movement: freedom of the individual, improvement [Tikun] of the society and the superiority of the law. ...

"The supremacy of the law will be expressed in the fact that an independent panel of judges will be granted not only the authority to determine, in the case of a complaint, the legality or justness of an administrative order or regulation issued by the executive branch, but also the power to adjudicate in the event of a complaint, whether the laws, enacted by the house of representatives (created, as we have seen, under a considerable influence of the government) are compatible with the Basic Law or the civil rights set forth in the law. "The right to a legal complaint in relation to the laws must be granted to every citizen if he considers himself directly or indirectly harmed by them.
Quite clear, isn't it? As well as timeless, but not for Ms Shaked and her bunch of supporters.

As well as being a critical issue that might be a first attempt to seriously undermine our democracy, the situation is a serious test for our (frequently spineless) prime minister. Does he understand the gravity of the attacks on HCJ? Is he aware of the dangers inherent in these attacks? Will he stand up to populism?

We shall see.

(*) To avoid nitpicking: there is no constitution in Israel, like in some other democracies, and the term "unconstititional" here means contradicting the basic laws of the state.