Hundreds of activists on Tuesday night participated in an Im Tirtzu demonstration in Tel-Aviv against Israel’s High Court of Justice. The rally was also led by the South Tel-Aviv Liberation Front, which confronts the state’s decision to pack their neighborhoods with illegal, mostly African migrants.
The loud demonstrators marched with Israeli flags along Rothschild Blvd. from Habima Square to Independence Hall (Dizengoff House) in old Tel Aviv, chanting slogans such as “End the High Court’s dictatorship,” “The people are the sovereign,” and “Jewish blood is permitted.” The activists called on the courts to stop their “judicial piracy,” namely to raid the Knesset legislative branch and dictate its agenda.
Israel’s High Court of Justice is one of the functions of the country’s Supreme Court, and its mission has initially been to hear petitions against the state authorities and other entities that fulfill public functions in Israel. Early on, petitioners were restricted under locus standi, their ability to demonstrate to the court sufficient connection to and harm from the law or action they were challenging. In 1969, Justice Agranat in Simcha Miron v. Labor Minister, ruled that a personal interest in a public concern was not sufficient to grant a right of standing.
But as the years passed, the High Court of Justice became more actively involved in both legislation and executive action, and in its zeal to encroach on its two equal partners in running state affairs—the Knesset and the Government—the High Court chipped away at locus standi, to the point of making it a trivial consideration in weighing individuals’ and group’s right to petition.
Indeed, in 2003, Justice Ayala Procaccia ruled in The Association for Civil Rights in Israel v. Knesset Election Committee Chairman, that “the court in its precedence rulings has greatly expanded the right to stand of public petitioners. It has done so in matters of a public interest bearing on the promotion of the rule of law, enforcing constitutional principles, and where intervention is required to correct a material defect in the conduct of the public administration. The status of the public petitioner has therefore been recognized even in cases where he cannot point to a direct personal connection nor personal injury.”
The above is an abhorrent violation of the sacred principle of the separation of powers that guides Western democracies, and the fact that Justice Procaccia threw it about with so little care for consequences explains why the popularity of the Supreme Court as a whole and the High Court of Justice in particular has dropped to single digits in the public opinion.
It is also richly reminiscent of United States Supreme Court Justice Potter Stewart 1964 description of his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene, and therefore was protected speech that could not be censored, Stewart wrote: I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description (pornography – DI), and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
The clever quip has been celebrated by LL1 students for decades since, but in reality Justice Stewart did nothing to help his heirs on the bench reach anything but unfair and biased rulings on obscenity – regardless of content. Likewise, the Israeli High Court of Justice has been brazen in removing the one aspect of fairness we expect of the final arbiter of public discord: the right of standing.
Acclaimed legal scholar and former United States federal judge Richard Posner was the first to coin the term “judicial pirate,” which he used to label former Israeli Supreme Court President Aharon Barak, the architect of Israel’s “constitutional revolution.” Tuesday’s demonstration came a day after the High Court’s decision to stop the planned demolition of the home of the terrorist who murdered 18-year-old Dvir Sorek last year.
The demonstrators argued that this was merely the latest in a long history of politically biased rulings by a court that put itself above the legislative and executive branches.
Last month, the High Court struck down a law passed by the Knesset requiring illegal migrant workers to deposit 20% of their monthly salaries in a special fund that would be made available to them only upon leaving the country. With that the court deprived Israel’s immigration authority of an effective, non-violent remedy which did not require prosecution or incarceration.
Sheffi Paz, a leading anti-infiltrators activist in south Tel-Aviv, said at the demonstration: “The High Court continues to disregard the will of the people and of their elected officials in order to advance its own political agenda. Why should the right of an illegal migrant worker to make money trump the right of elderly citizens to live without crime and violence in their neighborhood?”
Im Tirtzu CEO Matan Peleg said: “We are marching here to send a message to the High Court justices that they are not the rulers of this land. These justices were never elected, yet they view themselves as supreme rulers who intervene time and time again in every aspect of our lives.”
“The time has come for our elected officials to restore the separation of powers between the branches of government and to limit the High Court’s undemocratic intervention,” Peleg said.