Friday, August 31, 2018

A mistaken mandate - Aharon Garber

by Aharon Garber

The High Court of Justice is allowing itself more latitude to overrule the cabinet and Knesset in the name of "justice," even where there is no legal basis or justification for doing so.

In another defiant attempt to prove who is in charge, the High Court of Justice once again made itself sovereign when it ordered the government to allow five women from Gaza who are relatives of Hamas members into Israel for lifesaving medical treatment. They had been refused entry permits as part of a government attempt to promote Israel's security interests by pressuring Hamas, especially the return of the bodies of fallen soldiers Lt. Hadar Goldin and Staff Sgt. Oron Shaul. The ruling is the latest in a long string of decisions in which the court intervened in government decisions without having any legal authority to do so.

This was not classic judicial oversight in which the court looked at whether the government acted according to the law; this was substituting the court's judgment for the government's – not because the decision was illegal, but simply because the justice who wrote the ruling thought differently. The court feels that the decision was "unreasonable" and "disproportionate," but there is no legal argument that serves as a basis for the ruling. It ruled the way it did because that was what seemed just.

Former Beatle John Lennon asked us to imagine a world without countries or borders, but in reality, sovereign nations issue passports and operate border crossings. The challenges posed by terrorism and illegal migrants remind us that control of border crossings is not only a question of sovereignty but also a defense requirement and a matter of national interest.

The High Court, which manages Israel's policies, even though that is not its field of expertise, has fallen into the trap that was well-planned by the petitioners on behalf of the women, who employed legal warfare to promote the interests of Hamas and the Palestinian Authority.

How can judges face a cancer patient who is standing in front of them with medical proof that her life is in danger? Who will save her, if not the people of Zion and the judges in Jerusalem? The judges assume that they are the only ones who can take care of her, and rush to allow her and the four other cancer patients into Israel for immediate treatment.

To save these women's lives, the judges ignored the fact that it's not Israel's responsibility to treat them. They ignored the broader ramifications of their decision, as well as the fact that both Jordan and Egypt refuse to allow sick Gaza residents in to be treated. The Palestinian Authority, which will shoulder the cost of their care, is also insisting that the women be treated at the Christian Augusta Victoria Hospital on the Mount of Olives, which the Justice Isaac Amit deems to be in "Palestine." All this gnaws away at Israel's policies and national security interests.

Still, in the name of justice and morality, is there no room for a ruling like this one? In my opinion, these moral views are leading us to our destruction. I'm not the only one who says so – High Court justices who were on the bench only a few years ago, and even the current Chief Justice Esther Hayut, say the same. Moral rulings "in the name of justice" lead to anarchy. In the past, judges would explain to petitioners that their hands were tied in cases where the petition was not supported by law. But since then, things appear to have changed and the judges have much more latitude.

Former Supreme Court Justice Yitzhak Zamir once explained that "it [sometimes] happens that a judge, facing a conflict between justice and the law, cannot reconcile the two. In such a case, as difficult as it might be for him, he must not allow his impulses to overcome his work. Until the judge's oath of office demands that he rule based on what is just, he is bound to stay faithful to the laws of the state. … Above and beyond that, without the law … there is no justice. Therefore, heaven forbid that any judge jump from the facts to justice, as if no statute formed a barrier between them. With all due respect to justice, it must rest on a legal foundation."

In recent years, the perception of "the essence of democracy" has become more entrenched, judicial oversight a much freer reign when it comes to the government and the Knesset.

But like Chief Justice Hayut once said, "We must remember that judges are limited by the boundaries of the law and that smashing these boundaries and the legal rules to which we have allegiance has a price."
That price could be catastrophic.

Aharon Garber is an attorney with the Kohelet Policy Forum

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