Palestinians Suffer as Court's Authority Hits All-Time Low
By JONATHAN COOK
Counterpunch
July 16 - 18, 2010
The Israeli government is facing legal action for contempt over
its refusal to implement a Supreme Court ruling that it end a policy of awarding
preferential budgets to Jewish communities, including settlements, rather than
much poorer Palestinian Arab towns and villages inside Israel.
The contempt case on behalf of Israel’s Palestinian minority
comes in the wake of growing criticism of the government for ignoring court
decisions it does not like -- a trend that has been noted by the Supreme Court
justices themselves.
Yehudit Karp, a former deputy attorney
general, compiled a list of 12 recent court rulings the government has refused
to implement, but legal groups believe there are more examples. Many of the
disregarded judgements confer benefits on Palestinians, either in the occupied
territories or inside Israel, or penalise the settlers.
Critics have accused the government of violating the rule of law
and warned that the defiance has been possible chiefly because right-wing
politicians and religious groups have severely eroded the Supreme Court’s
authority over the past few years.
Senior members of the current right-wing government of prime
minister Benjamin Netanyahu, including the justice minister, Yaakov Neeman, have
repeatedly criticized the court for what they call its “judicial activism”, or
interference in matters they believe should be decided by the parliament alone.
Legal experts, however, warn that, because Israel lacks a
constitution, the court is the only bulwark against a tyrannical Jewish majority
abusing the rights of the country’s 1.3 million Palestinian citizens, as well as
4 million Palestinians living under occupation in the West Bank and Gaza.
Ilan Saban, a law professor at Haifa
University, said: “Unlike most -- if not all -- other democracies, Israel lacks
a political culture that respects limits on the power of the majority.”
Even the protections offered by Israel’s basic laws, he said,
were not deeply entrenched and could easily be re-legislated. The lack of both a
formal constitution and a tradition of political tolerance, he added, was “a
dangerous cocktail”.
Israel’s liberal Haaretz newspaper went further, warning recently
that, in “slandering the judiciary”, government officials had provoked a crisis
that could “lead to the destruction of Israeli democracy”.
The country’s highest court is due to rule in the coming weeks on
whether the government is in contempt of a ruling the court made four years ago
to end a discriminatory scheme, known as National Priority Areas (NPA), that
provides extra education funding to eligible communities.
The High Follow-Up Committee, an umbrella political body
representing Israel’s large Palestinian minority, launched the case because only
four small Palestinian villages were classified in NPAs, against some 550 Jewish
communities. The scheme, introduced in 1998, is believed to have deprived
Palestinian citizens, a fifth of Israel’s population, of millions of dollars.
Although the court ruled in February 2006 that the scheme must be
scrapped, the government has issued a series of extensions until at least 2012.
Sawsan Zaher, a lawyer with Adalah, a legal
centre that launched the contempt petition, said: “This case has become a symbol
of how the government refuses to implement decisions it does not like,
especially ones relating to constitutional protection and minority rights.”
However, she said that punishing the state for its actions would
not be easy. “After all, the court is not going to jail the government. The best
we can hope for is a fine.”
The NPA case is only one of several that have highlighted a
growing trend of law-breaking by the government.
Ms Zaher said Adalah had at least half a dozen other cases in
which it was considering contempt actions. Most referred either to the treatment
of Bedouin villages in the Negev the state refuses to recognise and to which it
denies services, or to the failure to allocate equal resources to Arab schools.
In its most recent annual report, the Association of Civil Rights
in Israel, the country’s largest legal rights group, listed several examples of
Supreme Court orders to dismantle sections of the separation barrier built on
Palestinian land in the West Bank that have been disregarded.
In one hearing, in October 2009, Dorit Beinisch, president of the
court, accused the government of taking “the law into its own hands” and
treating her rulings as “mere recommendations”.
She had been angered by the fact that an order to remove the
barrier around the Palestinian village of Azzoun, near Qalqilya, had been
ignored for three years. The judges had learnt that the hidden reason for
building the barrier had been to help expand the neighboring settlement of
Tzufim.
Similarly, in May, the court found that the government had
continued construction on a road between the settlements of Eli and Hayovel
despite a ruling that it must stop. In a harshly worded response, the judges
said: “It is inconceivable that the state does not know what is unfolding right
beneath its nose.”
Last month the Supreme Court again castigated the government for
ignoring an order from last year to demolish a sewage purification plant built
in the West Bank settlement of Ofra on privately owned Palestinian land in
violation of Israeli law.
Other prominent cases in which officials are defying court
rulings involve the refusal to demolish a synagogue built by settlers; the
failure to build hundreds of classrooms for Palestinian children in East
Jerusalem; and the continuing practice of “binding” foreign workers to a single
employer.
Late last year, the justice minister, Yaakov Neeman, warned that
he was considering legislation that would allow the parliament to bypass the
Supreme Court, even in cases where the judges have struck down a law on the
grounds that it contravenes a basic law.
The government’s flouting of these rulings has been possible
because of growing public disenchantment with the courts, observers have warned.
Last month a survey by Haifa University found that among Israeli
Jews who were not ultra-Orthodox or settlers -- both groups tend to reject the
court’s authority -- only 36 per cent expressed great faith in its decisions.
That was down from 61 per cent in 2000.
Among settlers the figure was 20 per cent, down from 46 per cent
a decade ago.
Aryeh Rattner, a law professor who
conducted the research, partly attributed the decline in the court’s standing to
its “excessive involvement” in what he called controversial religious, social
and defence issues.
However, Prof Saban said the “activism” the court has been
accused of was more illusory than real, and that it was often reluctant to
intervene in cases where violations of rights were clear cut. In the National
Priority Areas case, he said, lawyers had been challenging the patently
discriminatory scheme since its introduction in 1998.
“The court took nearly 10 years to rule against the scheme, and
since then the government has evaded implementing the decision until at least
2012. In other words, the petitioners are likely to be without a remedy for 14
years. That hardly qualifies as activism.”
A
shorter version of this article originally appeared in The National (www.thenational.ae),
published in Abu Dhabi.
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