Israel's High Court's Chief Justice delivered a speech recently in which she brought up important issues about the stability of the judiciary. She blamed the criticism leveled at the judiciary she heads on the lack of a large enough number of justices.
To my mind, what was lacking in the speech was some soul searching and perhaps even a plea for forgiveness.
Forgiveness from whom?
From those who were prevented by the police from reaching the protests against the disengagement, from the residents of Gush Katif whose petitions to the court received minimal attention.
From the haredim who agreed to the Draft Law passed by the Knesset but which was then rejected by the Supreme Court, from the hospital workers forced by Israel's Supreme Court to allow chametz to be brought into the hospital on Pesach and more.
The Supreme Court's public approval rating, as measured by the Israel Democracy Institute, is at an historic low and that has nothing to do with the number of justices.
An absolute majority of Supreme Court justices rejected the petitions of Gush Katif residents. The sole dissenting view of late Justice Edmond Levi was put down on paper but his opinion did not appear in the official court decision and was rejected out of hand:
"It was decided by a majority consisting of Chief Justice A. Barak, Deputy Chief Justice M. Cheshin, Justice D. Beinish, Justice E. Rivlin, Justice A. Procaccia, Justice A. Gronis, Justice M. Naor, Justice E. Arbel, Justice E. Hayut and Justice Y. Adiel, against the dissenting opinion of Justice E. Levy, to reject the petitions on everything relating to the legality of the expulsion; the petitions on the legality of the government's decisions and the injunctions issued in order to carry out the expulsion, and the petition against the applicability of the law to the towns of Eli Sinai and Nisanit."
All the erudite explanations of Justice Levy on the blow to rights of ownership, on the fact that he was not convinced that there was a worthwhile objective to the process and more, were not given proper publicity.
And, by the way, the so-called "prophecies of doom" quoted by Justice Levy turned out to be correct as time passed. "The retreat from Dugit, Nisanit and Elei-Sinai is a terrible mistake," he wrote in his opinion. "There is no demographic or security justification for it, and the price it may cost us is unjustified…a unilateral retreat from Gaza may be seen as surrender by some Palestinian Arabs. The plan may strengthen the extreme elements in Palestinian Arab society… there is a high probability that shortly after the disengagement there will be renewed violence. The year 2006 may turn out to be a year of another round of violence," Justice Levy quoted, as part of his learned explanation, the former head of the Shabak, Ami Ayalon.
Chief Justice Hayut could have said in her speech that she erred, or perhaps that she and her fellow justices were not listening attentitively enough.
"According to police reports, 103 buses with thousands of demonstrators, were arrested on the way to Netivot. The police confiscated the driver licenses of the busdrivers, and according to the heads of the protests, 320 of the 620 activists were stopped by police. Some had already reached Netivot, while others were on their way. In northern Kiryat Shmona, the police stopped four buses about to leave to Netivot. 100 rightist activists were taken off the buses, but stressed that nothing would stop them. 'We will get to Netivot, even if we have to walk there'."
On July 18, 2005, the High Court supported the decision to prevent protesters from reaching the demonstrations. This is the same High Court that decided to force people to stay at home in isolation during the Covid pandemic to prevent its spread, as announced on NRG, and then rushed to allow demonstrations [against Netanyahu] ,explaining that "the second point, and the principle one, is the essence of the right of protest. This is part of the right to political free speech."
Protests are a public and visible expression of opinion, they take place in plain view and in broad daylight. Night or day, however, political freedom of expression is the diamond in the crown of free speech.
It is one of the principles that separates a democracy from a non-democratic society. Supreme Court decisions explaining that view, including the opinion of the present Chief Justice on the right to demonstrate despite the Covid limitations, contained expressions such as this one: "On the status of the right to demonstrate as one of the important derivatives of freedom of expression and as the main tool for raising social issues and expressing opinions to the public's agenda, one that has been elucidated more than once by this court as 'belonging to the freedoms on which the character of Israel's government as a democratic one are based.'"
How then, can someone who was arrested on the way to protest in 2005 believe the courts are worthy of his trust?
How were haredim denied permission for mass prayer sessions during the Covid pandemic expected to trust the courts? And how were they expected to react when the High Court rejected the Draft Law their representatives in the Knesset worked on and which gained enough Knesset support to pass, only to be thrown out by the High Court as if it is the only authority allowed to pass laws and the sole decision maker in Israel?
Time after time the court finds creative ways to delay destroying houses when Palestinian Arab petitions come before it, but time and time again it has trouble finding the same legal excuses when the houses belong to "settlers." How are the residents of Judea and Samaria expected to accept the High Court as worthy of their trust and free of political opinions?
The Chief Justice erred when she ignored large sectors of the Israeli public who do not place their trust in the High Court and its Chief Justice. When less than 50% of the citizenry support and trust the courts, as head of the Israel Democracy Institute, former MK Yohanan Plesner announced yesterday, it would seem that Chief Justice Hayut, in her speech, missed a golden opportunity to begin to correct that.
Oded Revivi is Mayor of the City of Efrat in Gush Etzion, formerly a practicing lawyer and head of the public relations department at the Council of Judea and Samaria Communities. He was chosen by the Jerusalem Post in 2020 as one of 50 influential Israei personalities of the year.
Translated from Arutz Sheva's Hebrew site by Rochel Sylvetsky.