Judicial overreach and the Israeli sovereignty imperative

Excessive intervention by the courts into what is seen as the purview of the legislature is likely to have some unintended consequences: Energizing the drive to extend Israeli sovereignty over Judea-Samaria—and sparking far-reaching judicial reform.

Israeli Supreme Court Chief Justice Esther Hayut arrives at the Supreme Court in Jerusalem on May 3, 2020, to hear a petition against the coalition agreement between the Blue and White and Likud parties. Photo: Oren Ben Hakoon/POOL.
Israeli Supreme Court Chief Justice Esther Hayut arrives at the Supreme Court in Jerusalem on May 3, 2020, to hear a petition against the coalition agreement between the Blue and White and Likud parties. Photo: Oren Ben Hakoon/POOL.
Martin Sherman
Martin Sherman
Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.

The Supreme Court has lost it. It declares itself the legislature, executive and judiciary all at the same time—Israeli Health Minister Yuli Edelstein, June 9, 2020. 

We congratulate the Supreme Court for finally removing its mask and abandoning its pretense of impartialityRegavim, June 9, 2020. 

… the High Court today declared war on the right of Jews to settle in the land of Israel. Applying sovereignty and expanding construction are the best answers to the High Court’s ruling … The decision of the Supreme Judges is a definitive proof of our duty to apply sovereignty to Judea and Samaria—Settlements Minister Tsipi Hotovely, June 9, 2020.

On Tuesday, June 9, 2020, the Supreme Court, once again, ruled to revoke a law duly passed in the Israeli legislature.

The Judiciary vs. the Legislature … again

The law, the  Judea and Samaria Settlement Regulation Law (or the Regulation Law, as it is more widely known) pertains to thousands of cases in which Israelis built homes with government consent or encouragement, later to discover that the land’s ownership was in dispute. In many cases, the alleged landowners had no evidence to support their claims.

The law was initially passed in the Knesset by a comfortable majority of 60 to 52, on February 6, 2017. However, after petitions were submitted against it—by the heads of the local councils of 23 Palestinian villages, along with 13 so-called “human rights” groups, led by Yesh Din, Peace Now and the Association for Civil Rights in Israel (ACRI)—the government agreed to suspend the implementation of the law until the High Court published its final ruling on the issue. This it did last Tuesday.

The Regulation Law was formulated after Israel was forced to demolish a number of outposts and homes build on land later claimed to have been owned by Palestinian Arabs while the Jewish residents claimed to have legally purchased the land, or to have been misled as to its status.

The purpose of the law was to legalize retroactively up to 4,000 residences in about 16 Jewish  communities in Area C in Judea-Samaria (a.k.a. the “West Bank”), built on land initially designated as government-owned, but later was claimed by Palestinian Arabs—not always accompanied by proof of ownership.

According to the law, the land on which the residences were built would remain that of the legal owners, but its usage would be expropriated by the state. In exchange, the Palestinian-Arab owners would be compensated with 125 percent of the assessed value of the land, or if possible, receive alternate land.

The law was only to apply in cases where the homes were built in “good faith”—i.e. in cases where the Jewish homeowners built without knowledge that the land was privately owned, or where they received state assistance (indicating that the construction was government approved).

Equal rights for enemy aliens?

This week, the law was struck down by an almost unanimous decision of 8 to 1. In conveying the majority’s position, Supreme Court Chief Justice Esther Hayut stated that the law “does not meet the constitutional standards of Israeli law. The desire to find a simple and comprehensive solution to the problem of construction in Israeli localities in the region, after years of various authorities contributing to the creation of this reality, is understandable, and preventing eviction and demolition of bona fide homes and [with] the approval of competent authorities is a proper and important purpose.”

However, she added, “[This] … does not justify violating the right to property and the right to equality and dignity of the Palestinians … and creates discrimination between Israeli and Palestinian residents regarding the regulation of illegal construction in the area.”

Of course, this leaves any reasonably informed layman to puzzle over which clause in Israel’s as-yet-unwritten constitution mandates that members of an overtly enemy collective should be afforded rights equal to those of Israel’s own taxpaying citizens. Somewhat understandably, this prompted former Transport Minister Bezalel Smotrich, one of the original initiators of the Regulation Law, to vent his ire on the Court, blurting out angrily that it places “the rights of enemy civilians above those of the citizens of Israel.”

But more on that a little later.

The minority voice of reason

Justice Noam Sohlberg, the only one of the nine Supreme Court judges on the panel to vote against repealing the law, pointed out: “The Regulation Law is an exceptional law. It seeks to create an ‘unconventional solution to a difficult and unconventional problem …’ ”

He thus cautioned that it should not be judged by the usual criteria: “Any attempt, therefore, to examine the constitutionality of the Regulation Law by comparing it to ‘ordinary’ law—[such as] administrative or civil law–will inevitably seal its fate …”

Sohlberg expressed concern that the repeal will benefit “neither the [Jewish] settlers nor the [Arab] landowners … The former will lose out and the latter will not benefit.”

Somewhat wryly, he pointed out: “The land and buildings that the legislature sought to regulate, at least for the most part, would therefore remain deserted and abandoned–until the appearance of the prophet Elijah or some political decision as to the status of the region and the settlements in it (whichever comes first).”

Although he was critical of what he saw as the involvement of government agencies in supporting illegal construction in the past, he noted that this “will not change the fact that, over the years, this involvement has created a reality, on a very large scale, that cannot be ignored today.”

Justice Sohlberg agreed that the law indeed did result in some harm to the Palestinian-Arab landowners’ rights to property ownership and dignity, but given the complex realities on the ground, he judged that it constituted an appropriate balance—and should not be annulled.

He did feel, however, that the law should be sent back to the Knesset for further sharpening of its focus and definition of its scope of application.

A law that benefits both Jews and Arabs

As I mentioned before, the Court’s determination to repeal the law on the basis of its being “unconstitutional” is reminiscent of other vague terms, such as proportionality and reasonableness that have been invoked in the past in judicial annulment of laws passed in the Knesset.

In this case, however, the Court appears to have erred not only in the use of loosely defined concepts to underpin its ruling, but in the substantive analysis of the likely impact of the law under judicial review.

Indeed, not only is it clear that the proposed Regulation Law will ensure the rights of the Jewish homeowners, but it can be shown easily to enhance the rights of Palestinian-Arab landowners, as well.

After all, the alleged Arab landowners were not intended to be stripped of their property without recompense. Indeed, they were to be compensated at well above the assessed market value of the property over which they claimed ownership. Moreover, if the land is not used for Jewish residences, there is little chance of its being used for any alternative profitable purpose—as it would be left immediately adjacent to a Jewish community, and thus unlikely to be approved for any other activity.

Thus, little reflection is required to grasp that, in the daunting socio-cultural environment in which the Palestinian Arabs live, sale of land to the hated Zionists/infidel Jews—even at a handsome profit—is an act of treasonous betrayal, punishable by death, usually a grisly one.

Accordingly, it is only if a law like the Regulation Law is enacted, which in fact compels the Palestinian-Arab landowners to receive compensation for the use of their land, can they hope to see any profit from it.

A pretext for curtailing Jewish settlements?

Thus, unless the motivation of the Court is to curtail the development of the Jewish communities in Judea-Samaria, there appears little point, and no logic, in annulling legislation that ensures the rights of Jews and enhances the rights of Arabs.

Response from the political actors in Israel was largely as expected and varied in accordance with the support or opposition to Jewish presence across the 1967 Green Line.

Thus, the Court decision was lauded by the far-left, whose electoral constituency has shrunk to around five percent of the vote (excluding, of course, the dominantly anti-Zionist Arab Joint List, which, with the Islamist extremists and Arab ultra-nationalists, can hardly be designated as “left wing.”)

The Blue and White Party issued a largely non-committal response, declaring that it will respect the ruling and search for ways to legalize many homes “in a prudent manner and with wide consensus.”

On the pro-settlement right, reaction ranged from the irate to the incandescent.

Knesset Speaker Yariv Levin blasted the ruling, saying that the Supreme Court “once again today trampled, in its usual its deplorable fashion, Israeli democracy and the basic human rights of many Israeli citizens.”

Levin (Likud) lamented that the ruling “tore another rift into Israeli society and will do even more harm to the public trust in the [Supreme] Court and its justices.”

He warned: “The [Supreme] Court is marching with great bounds towards a legal crisis never before seen in Israel. The Knesset will be silent no more in the face of ongoing degradation of its legitimacy and standing.”

Invoking the Override Clause

Former Knesset Speaker and current Health Minister Yuli Edelstein (Likud) fumed: “The High Court has lost it. It declares itself the legislative, executive and judiciary all at the same time. This must be put to an end … by means of the ‘Override Clause’ [that would, in principle, allow the Knesset to override judicial repeal of laws.]”

Edelstein later tweeted: “If the High Court does not recognize its limits, the Knesset will have to delineate them.”

Jerusalem Affairs and Heritage Minister Rafi Peretz (Jewish Home) said: “The answer to the repeal of the Regulation Law is: Sovereignty now in Judea and Samaria. We must act with all our might to make it happen as soon as possible.”

Former Transportation Minister MK Bezalel Smotrich (Yamina) asserted gruffly: “The test for [Prime Minister Benjamin] Netanyahu, Likud and the ultra-Orthodox, will not be in ineffectual derogatory statements regarding the High Court over the repeal, but in passing the Override Clause in the Knesset immediately”—adding disparagingly, “There is a large majority for it in the Knesset, and with [only] 12 mandates, [Defense Minister Benny] Gantz will do anything to avoid elections.”

Former Defense Minister MK Naftali Bennet declared decisively: “The answer to the annulment of the Regulation Law must comprise two acts: Extending sovereignty and legislating the Override Clause … that will restore power to the representatives of the public.”

Will judicial overreach expedite judicial reform … and sovereignty?

Accordingly, the ruling to annul the Regulation Law appears to have sparked a heightened sense of urgency over the issue of sovereignty and its extension to the Jewish communities in Judea-Samaria. Thus, one source close to Netanyahu claimed: “Extending sovereignty will solve most of the problem of regulation.”

Another Likud source was cited as saying that once Israeli sovereignty is implemented on West Bank settlements, the law would no longer be necessary.

Whether or not these assessments are overly optimistic, it is undeniable that excessive judicial intervention in what is seen as the purview of the legislature is likely to bring about one unintended consequence: Energizing the drive to extend Israeli sovereignty to significant areas of Judea-Samaria.

However, probably what is even more likely is that it will ignite a vigorous effort to bring about far-reaching judicial reform—particularly regarding the manner in which judges are selected, in order to produce a judiciary more representative of the views and values of the society, whose disputes it is designated to adjudicate.

In several past columns I have had occasion to refer to Professor Ran Hirschl’s 2004 book, Towards Juristocracy, (Harvard University Press). I feel compelled to do so again—as his insightful caveat in the following excerpt encapsulates precisely the chain of events set out in this column—with the Supreme Court justices invoking some abstruse legal principle to overturn a seemingly commonsense “political arrangement and public policy agreed upon in a majoritarian decision-making arena [the Knesset].”

Judicial overreach, Judicial reform … and sovereignty (cont’d)

He cautions: “In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded … as political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court. As a result, the Court and its judges increasingly are viewed by a considerable portion of the Israeli public as pushing forward their own political agenda …”

Significantly, a recent poll by the distinctly left-leaning Israel Democracy Institute found that “59 percent of Israelis think that the legal rulings of Supreme Court justices are influenced by their political views.”

Indeed, as I pointed out in the past (for example here, here and here), the disconnect between the perspectives of the Supreme Court justices and wide swathes of the general public has led to a precipitous fall in the credibility of the judiciary in general and the Supreme Court in particular. Citing an ongoing study of the credibility of Israel’s judicial system conducted by Haifa University, Ynet‘s Einav Schiff echoed a virtually identical—albeit more recent—diagnosis to Hirschl’s. Thus, in a piece entitled “The Supreme Court is losing the people’s trust,” he wrote: “The view of the Court as an ivory tower, home to self-appointed gods, is becoming more and more common, and this is reflected in different confidence indexes. Last May, for example, the Rule of Law Index by Professor Arie Ratner of Haifa University found that 49 percent of Jewish Israeli citizens have confidence in the Supreme Court. In 2000, that rate stood at 80 percent. This isn’t a slip or a drop; it’s a collapse.”

The ‘D9’ specter and the desirability of the non-justiciability doctrine

With some prescience, he forecasts: “Needless to say, the High Court’s image among the public cannot remain as it is now. Eventually, there will be a political constellation that could enable another constitutional revolution—the kind hoped for by powerful players such as [then-Justice] Minister [Ayelet] Shaked and Minister Yariv Levin—which will be powered by support from the people.”

Then, in reference to a July 2015 remark by then-MK Moti Yogev (Jewish Home), who in response to a ruling to demolish two buildings in the settlement of Beit El, proclaimed: “… a Caterpillar D9 bulldozer should be used raze the High Court.”  Schiff warns ominously: “The D9 is already fueled to the max. The only thing that’s left is to step on the gas.”

In this regard, and just before the figurative D9 begins to rev up its engine, the Israeli judiciary should take note of the counsel of Professor Ruth Gavison, an Israel Prize winner for her legal research, who, together with constitutional law professor Or Bassok of the University of Nottingham, U.K., recalled an era  prior to the 1990s, “before the Supreme Court ruled that everything is justiciable—there was no need to explain that the Supreme Court lacks expertise or relative advantage in [certain] issues.”

They warmly endorsed the notion of “non-justiciability,” noting: “The non-justiciability doctrine which was designed to allow the Supreme Court to avoid deciding petitions that deal with issues in which judges lack expertise, or highly political issues, or issues that may erode the Court’s institutional capital.”

There is still time to heed this wise call for judicial restraint—before the D9’s gears engage.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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