Herbert Zweibon

“To hear John Roberts define judges as ‘servants of the law, not the other way around’ could only trigger acute envy in those Israelis who watched the televised Senate Judiciary Committee sessions,” observed Sarah Honig in The Jerusalem Post.

Israel’s Supreme Court, which in the early years of the state narrowly interpreted statutes and deferred to the decisions of the Knesset and executive, now fashions the law to suit its universalist ideology. In Coercing Virtue: The Worldwide Rule of Judges, Robert Bork declares: “Pride of place in the international judicial deformation of democratic government goes not to the United States, nor to Canada, but to the State of Israel….Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures.”

Viewing themselves as representatives of some kind of World Court rather than a Jewish state, the judges’ decisions are consistently unbalanced: in favor of Arab rights, indifferent to Jewish rights.

A few examples. In January 2003 the Supreme Court overturned a decision by the Central Election Commission to disqualify the Balad Party and its leaders Ahmed Tibi (a long time adviser of Arafat) and Azmi Beshara from running for the Knesset. The Commission had based its decision on “Basic Law: the Knesset” which disqualifies those “who negate Israel’s right to exist….or support an enemy state or terror organization’s armed struggle against the state.”

In March 2000 the Supreme Court ruled that Arabs had the right to buy land within Jewish communities. Zionist Organization of America head Mort Klein protested that the decision “challenges the very purpose of establishing Zionist institutions such as the Jewish National Fund and the Jewish Agency.”

In July 2004 the Supreme Court ruled that an eighteen mile section of the separation barrier being constructed by Israel had to be rerouted because it separated Arabs from their agricultural lands, which “injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law.” But when the Jewish communities of Gush Katif appealed to the Supreme Court for relief from the expulsion orders against them, the Supreme Court found nothing wrong with the government’s total destruction of their communities.

But perhaps most revealing of the Supreme Court’s contempt for human rights is the case of 14 year old Chaya Belogrodsky and a number of other young religious Jewish girls who participated in a non-violent demonstration against the expulsions from Gaza. The girls were imprisoned, for days not permitted to contact their parents or a lawyer. Although the probation officer urged that the girls be released to house arrest (while the case against them went forward), the judge refused on the grounds that these were “ideologically motivated criminals” and so more dangerous than others. Incredibly the Supreme Court upheld this decision even though, if convicted at the end, the most the girls faced was a monetary fine.

The girls were finally released (after 40 days) as a result of public protests. The Public Defenders Office issued a devastating report, accusing judges of “selective enforcement of the law based on political affiliation.”

What can be done to check Israel’s runaway Supreme Court? Step no. 1 is for the Knesset to change the way members of that body are selected; as long as the Supreme Court has the power to choose its own members, nothing will change.