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From
SHALEM PRESS




The Year of Ruling Dangerously

By David Hazony




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I
srael’s Supreme Court is not known for its reticence. In the half century since statehood, the court has gained a reputation for acting resolutely to protect what it has considered to be Israel’s founding legal principles, even in the absence of explicit license from the legislature. For most of that time, the court’s activism focused—and properly so—on protecting the rights and freedoms necessary for an open society and a responsive and representative government in a country not blessed with a strong democratic heritage. In recent years, however, the court has entered uncharted theoretical territory and claimed for itself wide new areas of authority. In the process, it has drawn heavy criticism from a growing number of scholars and commentators, some of whom have warned that the court’s approach would lead to a judicial “revolution,” in which the court would play a far greater role in defining the legal, social and political character of the Jewish state.
Over the past year, the worst of these fears have proved well founded. After a decade of preparing the theoretical ground for a quantum leap in its authority over the agencies of government, the court has begun issuing radical, landmark decisions at a pace previously unknown. One after another, areas which until now were understood to be outside the judiciary’s discretion have become the object of precedent-setting rulings, which in many cases overturned practices that were considered integral to Israeli public life since statehood.
To begin with what is perhaps the most striking example, the court has begun challenging long-standing policies in the area of defense. Israel has always been, and continues to be, a small country facing enemy armies as well as active guerrilla and terrorist organizations. As such, it has been an axiom of Israeli government, honored by lawmaker and judge alike, that the military must be allowed significant freedom of operation, so that it may develop responses adequate to the changing nature of its actual and potential enemies.
Now, however, the Supreme Court appears to have abandoned this policy, undertaking a sweeping review of the military’s policies and operations. On September 6, 1999, in the case of Committee against Torture v. Government of Israel, the court ruled, in an 8-1 decision, that the interrogation methods employed by the General Security Service (GSS), the principal intelligence agency responsible for fighting terrorism, were illegal. GSS interrogations, which included sleep deprivation and other measures aimed at extracting information from terrorists, had been the subject of heated debate which in 1987 resulted in the creation of a national commission, headed by former Supreme Court President Moshe Landau, to reformulate the guidelines for the agency’s operations. The Landau Commission determined that in cases in which lives are in clear and immediate danger (“ticking time-bomb” cases), the use of “moderate physical pressure” to extract information would be allowed; a committee of government ministers subsequently authorized this principle. Now, however, the court has concluded that investigations conducted by the GSS are no different from those of the police investigating ordinary crimes, and therefore may not employ methods more severe than those permitted the police. If they do, they violate the terrorists’ “dignity and freedom,” which are protected by the 1992 Basic Law: Human Dignity and Freedom, and are therefore illegal.
Another example of the court’s new involvement in military affairs came in April of this year, when a 6-3 majority ruled, in John Doe v. Minister of Defense, that eight Lebanese prisoners, held by the IDF as “bargaining chips” to secure the release of Israeli POWs, were being held illegally and must be set free. The background here is important: Decades of fighting guerrilla forces had led the political and military establishments to devise a variety of methods, from commando operations to retaliatory attacks to negotiations and prisoner exchanges, for dealing with the problem of soldiers taken hostage. In the case at hand, the IDF sought to improve its bargaining position in securing the release of Israeli POWs, by refusing to release eight Lebanese prisoners who had been convicted of membership in the Hizballah guerrilla organization and awaited release after completing their prison sentences. President Aharon Barak, writing for the majority, ruled that although nothing in the law books expressly prevented the military from employing such a tactic, doing so nonetheless violated the guerrillas’ “dignity and freedom,” and therefore could not be permitted unless the prisoners could be shown to be posing an immediate threat. Moreover, the court ruled, the practice contravened the 1979 International Convention on Hostage Taking—an international treaty which Israel has signed, but which the Knesset never ratified or enacted into law—and as such Israeli law should be reinterpreted in a way that “fulfills the rules of international law rather than contradicting it.”
Regardless of whether the court’s position is correct, one cannot help but think that in the absence of explicit legislation, such questions fall squarely in the realm of political, rather than judicial, decision making. Amnon Dankner, a respected journalist and commentator writing in Ma’ariv, assailed Barak’s approach as “imperial,” adding that the court “has become increasingly suspicious and hostile toward government, which it has come to see as increasingly illegitimate…. The indisputable fact is that it has damaged the government’s ability and freedom to wage military and political war against irregular forces.”
The court’s new interventionism has not been limited to defense issues, however. The family, too, has become a subject for judicial review. On January 25 of this year, in Jane Doe v. State of Israel,a three-justice panel of the court ruled unanimously that all corporal punishment by parents is illegal. Even mild spanking, wrote Justice Dorit Beinisch, “infringes on [the child’s] rights as a human being. It damages his body, his feelings, his dignity and his proper development,” and is therefore “forbidden today in our society.”From here on in, any parent who spanks his child is to be considered a criminal and, in theory at least, subject to imprisonment of up to two years for the crime of assault. (See Evelyn Gordon’s essay on this ruling, p. 50.) The decision was met in some camps with incredulity, and in others with rejoicing about the victory of “enlightened” views over the barbarism of child-spankers. What few people mentioned, however, was that another region of previously sacrosanct autonomy, the sensitive question of how parents raise their children, had suddenly become “justiciable.”
The court’s intervention in family matters extended, as well, to basic questions of how the family unit is to be defined. This past May, the court issued a landmark ruling in the case of Berner-Kadish v. Minister of the Interior; in which a lesbian couple, Ruti and Nicole Berner-Kadish, had requested that the Interior Ministry list both of them as the “mother” of Matan, a boy whom one of them (Ruti) had borne and the other (Nicole) had adopted under California law. In a 2-1 decision jointly written by Justices Dalia Dorner and Dorit Beinisch, the Interior Ministry was ordered to list both women as the child’s mother, even though Israeli law does not recognize homosexual marriages and stipulates that “adoption may only be carried out by a man and his wife together.” Since the Interior Ministry was merely being asked to recognize a legal adoption which took place outside Israel, the court ruled, and since the ministry has no authority to investigate the truthfulness of documentation presented to it—two arguments which were pilloried in Justice Abed Al-Rahman Zu’abi’s dissent—the ministry had no right to contradict the legal documents establishing both women as the child’s mother.
The implications of this seemingly technical verdict are far-reaching. From its logic, one can easily infer that any family structure legally recognized in any other country must also be recognized by Israel, if such a family should wish to register with Israeli authorities. The effect, of course, is to limit drastically the ability of Israeli society in general, and the Knesset in particular, to decide what constitutes a legal family, since any Israelis seeking official cognizance of “alternative” family structures of any kind have only to attain recognition in a foreign country.
In addition to its forays into defense and family issues, the court has broken new ground in matters of religion and state as well—including the supremely sensitive question of which religious practices may or may not be conducted at the country’s most sacred sites. On May 22 of this year, in the case of Hoffman v. Director-General of the Prime Minister’s Office, the court ruled that a women’s prayer group, known as the Women of the Wall, must be allowed to hold prayer services at Jerusalem’s Western Wall, including Tora readings and sounding the shofar, while wearing prayer shawls and phylacteries—which is in accordance with their beliefs but in contravention of the practice that has been customary at this site for many centuries, and which has been upheld by Israel’s government since the unification of Jerusalem in 1967.

Now, it has been an important judicial tradition in Israel to rule consistently for the preservation of extant practices in the holy places of all faiths, even at the expense of allowing legitimate religious expression on the part of other groups. The reason is simple: Holy places are, by their nature, a tinderbox of sensibilities and passions, which people are often willing to go to extremes to protect. Any attempt by the authorities to alter centuries-old practices in the Jewish, Christian or Muslim shrines risks disrupting the delicate balance which prevails in Israel among competing religious interests, and between those interests and the state. For this reason, most holy places have been governed not by explicit laws, but rather through informal arrangements, which reflect the sensitivity of the matter and discourage the use of force, including legal force, in resolving disputes. Yet here, Justice Eliahu Matza, writing for a unanimous three-justice panel, determined that the principle of equality mandates that the women’s prayer group be allowed to pray its own way at the site, regardless of what consequences might follow.

Supporters of the Women of the Wall may well be right when they argue that no branch of Judaism should have a monopoly on access to the religion’s holiest site. Yet as a legal precedent, the ruling is potentially catastrophic, signaling a removal of the protection which extant practices in holy places have enjoyed since Ottoman times. Even liberal-minded public figures, such as one Israel MK Uzi Baram, found the precedent reckless. Writing in Yedi’ot Aharonot, Baram predicted that it would “increase the lack of faith in the judicial system” and possibly even “complete the delegitimization of the judicial system among the religious community.”Liberal commentator Yaron London was similarly incensed: “In an earlier day, and now and again in our own day, subtler changes [in religious norms] than those proposed by the Women of the Wall have created whole new religions and rivers of blood…,” he wrote in Yedi’ot Aharonot. “There are times when judges dispense justice to the aggrieved without bothering to consider the different scenarios which may play out in reality. When these scenarios do play themselves out, it turns out that justice was but an illusion.”





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