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These decisions, all handed down during Aharon Barak’s period, show more than any essay could why Israel needs judicial reform
By: Rochel Sylvetsky
There are many reasons for effecting judicial reform in Israel, not the least of them the way Supreme Court judges are chosen and the absolute power held by the unelected legal advisor to the Prime Minister (who also functions as the attorney general) and the legal advisors to the government ministries. Add the absence of a demand for standing, the fact that everything, including religious, military and economic decisions can be (and are) adjucated in the courts, the fact that a justice’s opinion of the “reasonableness” of an issue allows him to strike it down and that all of the above are particular to Israel.
However, there is a more basic reason change is needed, a factor that the current liberal makeup of the courts does not deem worthy of taking into account. And as long as new justices are chosen by the current ones, in a process that seems almost like cloning, that will not change:
Israel’s justices must first and foremost take into account that Israel is a Jewish state.
They must take into account that Israel has been battling since its establishment against barbaric and cruel enemies.
They must realize how many families have offspring in the army and what kind of split second decisions young soldiers in danger have to make.
They must see to it that Israel is a place where procedures and regulations that can save Jewish lives, both of soldiers and civilians, are in a special category.
Israel should be a place where those who lift a hand against its Jewish citizens because they are Jewish know they will be punished swiftly and severely.
Israel should be a place where the right of each Jewish citizen to live according to halakha if he so wishes is sacrosanct.
Israel should be a place where every effort is made to find legal ways to uphold settling the land of our fathers, including Judea and Samaria, since this is government policy.
Israel’s being defined in the Declaration of Independence as a Jewish state means it should be a country where the basic symbols of Judaism are upheld in public spaces and that the feelings of the observant and their ability to participate in events are taken into account as much as possible – meaning kosher food in the army, El Al and the Knesset, no chametz in the army, Knesset and hospitals on Pesach, stores closed on Shabbat, no public transportation on Shabbat and Jewish holidays, hesder army service that is compatible with observant Judaism.
It is tragic that today’s Supreme Court does not attempt to meet the challenge of what the unique legal character of the first Jewish state in 2000 years should be. The courts should be carefully developing a unique and just legal system with an attitude to security that protects Jews and respects Jewish values. Instead, unfortunately, extremist liberal progressive opinions of judges are repeatedly forced upon the Zionist and tradition-oriented majority of Israeli citizens. The majority of the justices on Israel’s Supreme Court do not relate to the above statements at all, while retired Supreme Court Chief Justice Aharon Barak molded the system to suit his liberal way of thinking.
The best way to understand the issue is to see the court’s record. Dr. Assaf Malach, head of the Education Ministry’s civics committee, selected 50 Supreme Court decisions that were based on justices’ interpretations and opinions, rather than the law. These court decisions illustrate the lack of interest in how a Jewish state established after 2000 years of exile is expected to dispense justice. They are translated below:
Security and terror
The Supreme Court:
- Set severe limitations on targeted killing of terrorist leaders (2006)
- Prohibited use of a method saving lives of IDF soldiers known as the “neighbor rule” – i.e. when there is a strong possibility that an armed wanted terrorist lurks behind a door that must be opened, soldiers would have a Palestinian Arab stand in front of them and let the terrorist inside the room know about it so he would not shoot- (2005)
- Minimized permitted areas to be demolished in terrorist homes and delayed decisions for long periods, making them less effective –( 2016, 2018, 2020, 2020 etc).
- Heard suits brought by terrorists who are citizens of enemy states-(Dirani, 2011)
- Limited IDF activity while fighting was taking place and set guidelines for IDF officers – (Church of the Nativity 2002, Rafiah 2004
- Cancelled the Interior Minister’s decision to void residence permits for Palestinian Parliament members who are Hamas delegates –(2017)
- Ordered granting National Insurance payments to terrorists whose citizenship was cancelled –(2022)
- Refused to allow Israel to keep bodies of killed terrorists as bargaining points for the return of IDF soldier’s bodies (2017 – rescinded 2019!)
- Struck down the law denying monthly child benefits for a terrorist who is a minor – (2021)
- Interfered in IDF security considerations for marking the location of the separation fence – (2004)
Immigration
The Supreme Court:
- Blocked the government policy for protecting elderly residents of south Tel Aviv terrorized by lawless illegal employment-seeking infiltrators from African countries who moved into the neighborhood en masse – by invalidating three different laws meant to prevent illegal infiltration-(2013 2014, 2015).
- Blocked the government plan for relocating infiltrators to another African country –(2017)
- Invalidated the “collateral law” meant to encourage infiltrators return to their native country – (2020)
- Invalidated the Interior minister’s decision to limit the number of non-Jewish Ukrainian refugees allowed into Israel –(2022)
- Determined the status of female infiltrators as refugees based on a hypothetical possibility that they might undergo circumcision in their country of birth – (2020)
- Eased the process for residency permits in Israel for Gazan Palestinian Arabs- (2017).
