In a democracy, where checks and balances between the branches of government are crucial, disregard for the judiciary is a sure recipe for the decline of democracy. It damages the authority and status of the courts, which are often the last resort for individuals who suffered by the actions of the authorities. Disregard for court authority violates human rights and leads to a tyranny of the majority which, in the absence of an effective judiciary, can rule without restraint solely through the executive and legislative branches.
1. Non-compliance with Supreme Court rulings
“A court order requiring the state to take certain measures, whether it represents a temporary legal remedy or the final judgment in a case, places mandatory obligations upon the state. Compliance with court rulings is incumbent not only upon the residents of the state and those who enter its borders, but first and foremost upon the state itself.”
Does this seem like an obvious statement, that such is the case in a democracy? Apparently not, for Israel’s Attorney-General found it necessary to print these very words in the opening to his recently published directives. He then went on to list a series of steps that state authorities must take should the courts hand down a ruling against them, in order to insure state compliance. The need for such a directive arose from the numerous cases over recent years in which state authorities have ignored court rulings or failed to implement them in a timely manner.
In a democracy, where checks and balances between the branches of government are crucial, disregard for the judiciary is a sure recipe for the decline of democracy. It damages the authority and status of the courts, which are often the last resort for individuals who suffered by the actions of the authorities. Disregard for court authority violates human rights and leads to a tyranny of the majority which, in the absence of an effective judiciary, can rule without restraint solely through the executive and legislative branches.
Last year, we examined the serious phenomenon of non-compliance with court rulings in our report “The State of Human Rights in Israel – 2009″ (pp. 67-70), published in December 2009. At the beginning of 2010 Attorney Yehudit Karp, a former deputy attorney general, sent a detailed memorandum on the subject, based on cases handled by ACRI, Yesh Din and Adallah, to the Attorney General. Following receipt of the memorandum, the Attorney General saw fit to publish the directives mentioned above.
Among the recent High Court rulings that have not been implemented or were long-overdue when implemented are the following cases1 :
- Cancellation of the arrangement binding migrant workers to their original employers (HCJ 4542/02 Kav LaOved v. Government of Israel)
- Eliminating the division of the state into national priority areas in education (HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister)
- Dismantling sections of the separation barrier (HJC 2732/05 Hasin v. Government of Israel, HCJ 8414/05 Yassin v. Government of Israel, HCJ 1748/06 Kissiya v. IDF Commander in the West Bank)
- Protection of educational institutions in Sderot (HCJ 8397/06 Wasser v. Minister of Defense; HCJ 8619/06 Sderot Parents Committee v. Minister of Defense)
- Construction of new classrooms in East Jerusalem (HCJ 5185/01 Fadi v. Jerusalem Municipality, and other petitions)
- Construction of a new high school in the vicinity of the Abu Talul village in the Negev (HCJ 2848/05 Fatma Abu Sbeileh v. the Ministry of Education)
- Demolition of an illegally built structure at the Derech Avot outpost (HCJ 8255/08 ‘Ali Muhammad Issa Moussa v. Minister of Defense et al)
- Temporary injunction ordering the cessation of road construction of between the Eli settlement and the illegal outpost Ha-Yovel (HCJ 2759/09 Labum v. Minister of Defense)
- Integrating children with disabilities in the regular education system (HCJ 2599/00 Yated – Society for Parents of Children with Down Syndrome v. Ministry of Education)
- Establishment of a Committee to examine “targeted killings” (HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel)
- Making schools accessible to students with disabilities ( HCJ 7081/93 Botzer v. the Maccabim-Re’ut Regional Council. It should be noted that in this case and the following one, the state did implement the specific ruling, but did not act in the spirit of the ruling in other similar cases that have arisen since)
- Appointment of Reform and Conservative representatives to local religious councils (HCJ 4733/94, 6028/94, 7105 /95 Naot v. Haifa Municipal Council; Shavit v. Kiryat Tivon Local Council, Meretz faction in the Jerusalem Municipality v. Jerusalem Municipal Council)
In August, along with the publication of the new directives by the Attorney-General, Adv. Karp received a reply from the Ministry of Justice addressing all the cases mentioned in her memorandum and explaining how they evolved and why implementation of these rulings was not carried out or was significantly delayed. In summary, the Justice Ministry explained that state’s non-compliance with the court rulings was due to the “extreme complexity of these cases, some of which entail significant budget expense, some which have implications for third parties, some of which require the establishment of new procedures and various complex administrative actions. Because of their complexity, these court rulings require an extended period during which they can be implemented”. Putting it simply, the state claimed that the rulings were not carried out or were significantly delayed because implementation was complicated and at times expensive.
These explanations are unsatisfactory. The state’s conduct described in the letter – delays and postponements in implementing court rulings and repeated requests for deadline extensions – is precisely the sort of behavior that the court has criticized and sought to prevent. Moreover, the complexity and the cost of implementation were well known to the justices when they arrived at their conclusions and they nevertheless instructed the state to carry out a just resolution. And so, considerations of cost and complexity cannot serve as a justification for non-compliance, as the court had taken them into consideration and ruled that necessary steps need to be taken nonetheless.
“Indeed, situations can arise where there are obstacles or mishaps in implementation, but the phenomenon [of noncompliance] cannot be attributed to these,” said Att. Karp in an interview with Ha’aretz in March 2010. “In my opinion, the increasing number of cases in which court rulings were implemented after long delays, partially implemented, or not implemented at all, cannot be regarded as chance bureaucratic failures; rather they’ve taken on the character of a dangerous phenomenon that strikes at the very heart of what is considered a proper governance culture.” According to Karp, “the systematic and conscious disregard for carrying out court rulings represents a real and immediate danger to democracy, to the rule of law, and to the separation of powers in Israel. Where there is ‘no judge, and no justice’, where the government rules arbitrarily by force – the disintegration of social order in the country is soon to follow”.
2. Interior Ministry ignores rulings of the administrative courts
The administrative courts have become the country’s main venue for adjudicating matters of entry and immigration to Israel. Over the years it has become evident that the Ministry of the Interior does not hold the principled decisions of these courts in high regard, nor does it see itself as obligated to carry out their rulings. Rulings handed down by the administrative courts which defy existing policies of the Interior Ministry have been implemented only with regard to the concrete case discussed in court, and unfortunately have not resulted in a change of policy required to incorporate the ruling into the Interior Ministry’s procedures. Moreover, in many cases the ministry chooses not to appeal these rulings, but nevertheless continues to conduct business-as-usual based on policies that have been found legally unacceptable by the courts. The Interior Ministry goes one step further to claim that these rulings – which the ministry declined to appeal – are incorrect and thus are not considered abiding guidelines.
For example, three separate judgments of the administrative courts have established that for the purpose of granting residency status in Israel, applying the category of a “lone and elderly parent” of an Israeli citizen should be based upon the applicant’s life situation and not just on the dry facts. For example, if the elderly parent has other children living abroad besides his children here, but he or she cannot rely on support from these other children, then the parent should be considered a lone parent and be granted residency status. The Interior Ministry has chosen not to appeal these court decisions, and yet it has ignored in practice the main principle in these rulings. According to the ministry, these rulings are not binding other than in the specific circumstances of the individual cases being adjudicated. Other lone and elderly parents with identical circumstances are being denied residency status when they apply for it at the Interior Ministry offices. ACRI has submitted a petition on the matter to the Be’er Sheva Administrative Court.
The ministry’s disregard of the principled legal decisions made by the administrative courts makes it impossibility to eliminate the ministry’s illegal conduct. For according to the ministry, it can choose whenever it wishes to refrain from appealing a court decision on an illegal conduct by simply continuing to carry out existing problematic policies. This severely damages the status of the courts, the principle of judicial oversight, the separation of powers, and the rule of law. In a democratic country, one of the judiciary’s roles is to monitor the actions of the executive and to clarify the limits of its powers. The decisions of the court, if they are not appealed, have the force of law. If the executive authorities disagree with the court’s decision they have the right to appeal it, but if they choose not to appeal then the ruling is binding upon them and they are obligated to adjust their policies so they are consistent with principles stipulated in the court ruling. Regarding this, we should take heed of the warning of Supreme Court Justice Ayala Procaccia: “A state where the ruling authority takes the law into its own hands, implementing court orders against it when it so desires and ignoring others when it so desires, is a state that is sowing the seeds of disaster and anarchy.”2
3. Legislative attempts to harm the status of the High Court
In addition to ample examples of state authorities ignoring court directives, we have also witnessed a series of attempts by Knesset members to limit the authority of the judiciary and to weaken its power. This has been carried out through legislation designed to circumvent explicit rulings of the court and thus make them irrelevant, and through bills designed to weaken the judicial branch as a whole. These attempts raise grave concern because they tilt the delicate balance of power between the branches of government – a balance that is essential to democracy, to the preservation of human rights, and to protection against a tyranny of the majority. The judiciary serves as a counterweight to those authorities chosen by the majority – the Knesset and the government – and at times it serves as the last bastion for safeguarding the rights of the individual, especially minority rights threatened by the majority. Therefore, weakening the power of the judiciary is liable to end up harming the civil rights of minorities.
Examples of legislation “bypassing” the High Court:
- Civil Damages Law: In 2005, the Knesset approved an amendment to the Civil Damages Law aimed at depriving residents of the Occupied Territories the right to receive compensation for damages caused to them by Israeli security forces, whether in the context of war actions or outside of that context. The amendment constitutes a severe blow to the most basic rights afforded to all individuals, chiefly the rights to life, equality, dignity, bodily integrity and property, and an individual’s right to seek legal remedies through the courts.
In late 2006, following a petition submitted by nine human rights organizations including ACRI, the High Court, in an expanded panel of nine justices, ordered the cancellation of the amendment, as it contradicted the Basic Law: Human Dignity and Liberty. Nevertheless, six months after the ruling was handed down, the government prepared a bill to bypass the High Court ruling in order to re-enact the revoked amendment. The bill passed its first reading in the 17th Knesset. The continuity rule was applied to the bill in the 18th Knesset, and it was debated twice in the Knesset’s Constitution Committee in order to prepare the bill for second and third readings.
- Extending the “Citizenship Law”: The Citizenship and Entry into Israel Law (Temporary Order), 2003, prevents the possibility of attaining a legal status in Israel by any Palestinian or resident of an Arab country who is the spouse of an Israeli citizen. The law, enacted as a temporary order for a limited time, violates the right to family life and the right to equality of Israel’s citizens, principally its Arab citizens.
In May 2006, an expanded panel of the Supreme Court rejected a petition filed against the law in a 6-5 decision. However, six of the eleven justices ruled that the law itself was unconstitutional, due to its violation of the abovementioned rights. Five of the justices agreed that this was reason enough to have the law canceled within six months of the ruling. Despite this, the law has been renewed time and again, and remains in effect to date. During this time, Knesset members have made attempts to pass legislation that would limit the High Court’s jurisdiction to consider the Citizenship Law or to cancel it, by giving the law constitutional status and enshrining it within the Basic Law: Human Dignity and Freedom. A bill in this vein was submitted to the Knesset at the end of 2009 by MK David Rotem (Yisrael Beiteinu) and 44 other MKs. The bill has not yet been advanced, in the absence of agreement within the coalition. ((See also the commentary of Prof. Uriel Procaccia regarding this bill and the harm it would cause to democracy.))
- Preventing Palestinian movement on Route 443: At the end of 2009 the High Court accepted the petition filed by ACRI and the residents of six villages in the West Bank, and ordered the IDF to revoke its ban imposed on the travel of Palestinians on Route 443. The court accepted the argument that the prohibition on Palestinian travel denies them their right to freedom of movement, and represents harsh, sweeping discrimination between Arabs and Jews, whose free movement on the road is unrestricted.
Following the court ruling, a number of Knesset members decided to restore this discriminatory and unconstitutional practice, this time through the force of law. According to the bill submitted by MK Moshe Matalon (Yisrael Beiteinu) and others, the State of Israel would annex a section of the West Bank where the road passes, which would effectively enable the continued ban on Palestinian travel. Another bill, submitted by MK Danny Danon (Likud), suggests that the court’s authority to determine travel arrangements on the road be “revoked”, and that authority would be exclusively in the hands of security officials. The bill assumes that it is perfectly acceptable in a democracy to take a matter with significant legal and constitutional implications, and remove the court’s jurisdiction over it. The bill was not advanced.
Examples of legislation that seek to weaken the Supreme Court:
- Increasing the number of Supreme Court justices: Unlike other attempts to increase the number of judges in various courts and tribunals to handle the growing caseload within the system, the stated goal of this bill, which was introduced by MKs Yariv Levin (Likud) and Michael Ben-Ari (National Union), is to allow the appointment of judges with certain political opinions and worldviews and to exclude others.
At the start of 2010 the Ministerial Committee on Legislation rejected the bill. However, there are still MKs seeking to promote measures aimed at weakening the authority of serving justices, for example by changing the process by which the justices are selected.
- Establishment of a constitutional court: The bill was initiated in April 2009 by MK David Rotem (Yisrael Beiteinu), but it is linked to an initiative that has been surfacing for several years. The aim of the legislation is to remove from the Supreme Court the authority vested in it today to determine whether laws passed by the Knesset are constitutional or not, and to cancel any such laws that contradict Israel’s Basic Laws. This proposal seeks to significantly weaken the Supreme Court and to transfer its power of judicial review to another body, which would be less judicial and more political.
It is important to remember that in a democracy, where there is separation of powers between the branches of government, the court’s role is to ensure the rule of law and to prevent human rights violations in general, and in particular, to prevent violations of constitutional rights, including when these violations are carried out through legislation. This is one reason why the judicial review of the laws passed by Knesset must be placed in the hands of justices who are independent of the political selection process. Only in this way can the political majority be restrained from oppressing the rights of the minority. For this reason, the proposed emptying of the court’s powers through these bills would severely undermine the principle of separation of powers, the ability to safeguard human rights, and the democratic system itself.
- For more on these cases and examples of others see: ACRI’s “The State of Human Rights in Israel and the Occupied Territories – 2009 Report” (p. 71-74) and the memorandum of Att. Yehudit Karp. [↩]
- HCJ 4805/07 The Jewish Center for Pluralism – The Movement for Progressive Judaism in Israel v. The Ministry of Education [↩]
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