In Israel and among its external supporters, there is a perception that Israel’s Supreme Court is – or at least was until recently – an “activist” one that checked the government’s excesses and defended human rights. Indeed, the Court expanded access to the judiciary by minimizing the standing requirements and it further showed willingness to intervene in state policy and parliamentary legislation by expanding the purview of judicial review. This narrative of “judicial empowerment” and the “rise of constitutionalism” is crucial to Israel’s image and self-perception as a liberal democratic state governed by the “rule of law,” despite the absence of a codified constitution. Remarkably, this narrative has been resilient despite its co-existence with the growing power of right-wing Zionism, the increasing brutality of the occupation, the consolidation of colonization, and the entrenchment of institutionalized discrimination against Palestinian citizens.
In order to provide a realistic assessment of the role of the Supreme Court one needs to consider the various rhetorical and legal devices that the Court deployed in its jurisprudence. Through these devices, the Court has effectively limited access to justice and ultimately affirmed state power. These “minimalist” devices – what the American jurist Alexander Bickel famously called “the passive virtues” – are supposed to help unelected judges avoid the charge of usurping political power and violating the separation of powers. As such, they embody a deferential attitude that is inconsistent with the “activist” image. Although these devices are largely described as merely technical or procedural, they require judges to make a political-normative assessment regarding policing the boundary between law and politics. Therefore, their apolitical and procedural façade notwithstanding, they do not save the Court from having to make political and substantive judgments. They do, however, allow the Court to deny responsibility for the political effects of judicial decisions. The consequences of this judicial “non-intervention” are often detrimental to the status of Palestinians, including those with Israeli citizenship.
Elsewhere, I have examined these questions with respect to the Court’s “jurisprudence of occupation.” In what follows, I mention briefly some of the devices that the Court has used to justify or show deference with respect to the subordination of the Palestinian citizens: the “political question” doctrine, the doctrine of generality, delay, and ripeness.
At the time when the Supreme Court expanded its rhetoric of judicial review and intervened in the “nitty-gritty” politics (in cases not related to Palestinians), it occasionally used the “political question” argument to avoid intervening in some governmental decisions against Palestinian citizens. This reasoning is especially striking in cases in which the Court was not willing to intervene even when the state’s decision was manifestly flawed.
Consider the case of the Palestinian village of Iqrith located in what is now the north of Israel. The Israeli army occupied Iqrith in October 1948. A week later, the villagers were requested to leave for 15 days for “security” reasons and they did so but they remained in Israel and became Israeli citizens. The Court ordered the army in an early ruling to allow the return of the displaced persons to their village. The army reacted by destroying the village. During the subsequent years, several government-appointed committees recommended that the inhabitants be permitted to return to Iqrith, but none of these recommendations or promises materialized.
In 2003, the Court rejected a 1997 petition by the displaced villagers. The Court accepted the petitioners’ argument that the security conditions that once justified their displacement are no longer valid. It also acknowledged the government’s promises to allow the return of the villagers. Nevertheless, the Court argued that this is a “political” question in which the state has wide discretion. It also accepted the government’s tenuous argument that allowing the petition would be detrimental to Israel’s vital interests because it may set a precedent for Palestinian refugees’ right of return in the context of the Oslo process.
In other cases, the Court justified its lack of action by claiming that the petitions regarding discriminatory distribution of state resources are too “general” to warrant a judicial remedy and lack a sufficient “factual basis.”
In one case, petitioners raised a discrimination challenge against the budget of the Ministry of Religious Affairs, which allocated only 1.86% of the total to the country’s Palestinian Arab citizens, while they constitute 20% of the population inside the Green Line. The Court rejected the petition, maintaining that it refuses to be a “general supervisor” of the state budget. It also claimed that the petition is general and lacked a factual basis, despite the numbers the petitioners provided. The Court reasoned that the focus should be on substantive equality rather than formal equality, and that this requires an inquiry into the religious needs of every community. In the absence of such an inquiry, the petition was deemed too general.
This is a remarkable argument: Notions of substantive equality are normally used to allow minorities to obtain equality beyond the formal measures given the persistence of structural impediments and historical discrimination. Yet here the Court used substantive equality in order to deny formal equality.
Moreover, the Court has been inconsistent in dismissing cases on the basis of generality. In the cases on family unification bans, the Court approved a blanket measure – prohibiting all Palestinian family unification – that supplanted an existing case-by-case system. Similarly, in cases concerning political prisoners, the Court approved a general suspension of access to higher education courses for all “security prisoners.” In contrast, in the cases on “Admission Committees” that regulate who can live in Israel’s various communities and towns, the Court deemed the petition too general because it lacked a case-by-case analysis of the law’s effects. In the Religious Affairs budget case mentioned above, it is unclear how specific the petition should have been in order to avoid dismissal for being too “general”, as the petitioners provided a list of religious needs. What is clear, however, is that the Court’s intervention – whether requiring “general” or “particular” analyses – disadvantaged the Palestinian citizens.
Back to the Iqrith cases mentioned above: In these cases, the Court also rejected an earlier petition submitted by the displaced villagers because they were deemed to be too “late” in approaching the Court.
In 1981, the petitioners challenged the legality of a Certificate issued by the Minister of Finance in 1953 that transferred Iqrith’s lands to the Development Authority. They also challenged military orders from 1963 and 1972 closing off the village. The Court reasoned in a few pages that the passage of such a long period of time hinders its ability to examine the considerations that guided the state authorities in issuing these orders in the first place. The Court did not distinguish between the 1972 and 1953 orders concerning the lapse of time. Despite the sympathy that the Court expressed to the petitioners, it denied their claim that the security conditions that prevented their return were no longer valid. The Court relied on the “well-known” fact “that requires no proof” that the security conditions on the northern border adjacent to the village are not peaceful. In other words, the security conditions cited by the Court were not internal to Israel but external to it and bear no relationship to Iqrith and the displaced.
The Court’s ruling on the so-called Nakba Law deployed a different rhetorical tool of deferential courts. If the previous case under discussion was rejected because it was too late, here the case was rejected because it was premature.
The Budget Foundations Law (Amendment no. 40) (2011) authorizes the Minister of Finance to lower state funding of institutions or bodies that organize events that reject the Jewish and democratic character of the state or consider Independence Day as a day of mourning. This law is clearly directed against Palestinian citizens who present an alternative narrative to the Zionist narrative and commemorate the Nakba (catastrophe), the ethnic cleansing of the Palestinians. Notwithstanding the provision’s clear chilling effect, the Court rejected the petitions challenging its constitutionality. The Court reasoned that the law’s impact could not be assessed prior to its implementation, and thus the question was not ripe for judicial intervention. The Court made the same argument in the above-mentioned case concerning Admission Committees.
Unmasking the Israeli Supreme Court’s “apolitical” posture is necessary to foreground judicial agency, and hence, complicity in the evolution and legitimation of the Israeli legal and political system. The deployment of these judicial devices illustrates that the label “activist” is misleading, as it does not take into account the ways in which the Court sanctions oppressive practices, even lacking an explicit or visible form of intervention. This “passivity” does not imply lack of intervention. It merely suggests different degrees and forms of intervention. As these visible and less-visible interventions lead to the overall effect of subordinating the Palestinians, the Court becomes complicit in advancing this subordination. The judges cannot deny their role by simply pointing out the procedural or technical nature of some of the judicial devices, or more by maintaining a general distinction between law and politics. A close examination of the Court’s jurisprudence shows that judges have discretion and exercise agency because they have different legal options open before them. This discretion is apparent not only in interpreting abstract constitutional principles and fundamental rights, but also when deciding when and how to deploy a “procedural,” “deferential” attitude. Thus, their choices are not entirely determined by the “law” to the exclusion of politics. Consequently, and given the general oppressive effects of these choices, the Court cannot be convincingly portrayed as an “activist,” rights-vindicating court. Quite the contrary, it may be considered an activist agent of an oppressive system.
This is an edited and revised excerpt of “The Legal Structures of Subordination: the Palestinian Minority and Israeli Law,” a chapter in Israel and Its Palestinian Citizens: Ethnic Privileges in the Jewish State (edited by Nadim Rouhana and Sahar S. Huneidi, forthcoming from Cambridge University Press).