The Israeli Supreme Court and the de-liberalisation of Israel

The Twilight of Israel’s Juridical Liberal-Democratic Period

Monday, 16 January, 2012 - 19:43
London, UK

Eyal ClyneLast week, Judge Noam Sohlberg was appointed to the Israeli Supreme Court, which, in Israel, is also the High Court of Justice, a court of judicial review carrying important constitutional functions. Sohlberg will become the first settler judge in Israel’s history.

Being a settler, Sohlberg has a clear conflict of interests, since he will have the authority to rule on appeals against government policies violating International Law, while himself violating International Law on a daily basis. In fact, he has a personal and political interest in continuing to legitimise Israel's ongoing and expanding illegal settlement project in the Occupied Palestinian Territory (OPT).

Sohlberg already has a proven record of controversial anti-liberal rulings in lower courts, some of which were later reversed. For example, he rejected an appeal  to allow registration of nationality in Israeli ID cards as "Israeli" rather than "Jewish" or “Arab”;  he supported the state against an Israeli living abroad, after his passport wasn't renewed because he did not return to do military service; and he acquitted a policeman who shot a man dead (a ruling which was later reversed unanimously by the Supreme Court).

Sohlberg also accepted several high profile right-wing libel claims against the media, including one by a military officer against the Channel 2 TV investigative program 'Uvda'. On the other hand, he rejected a slander claim against extreme right-wing activist Itamar Ben Gvir, who called an Arab MP 'a Nazi' in court. A few years ago he also rejected a libel claim against the settler newspaper 'HaTzofeh,' filed by author B.Michael, a senior satirical writer, for calling him (in 2003) "one of the greatest anti-Semites in the world." According to Michael, the ruling "ranged from strange to absurd" and "was an attempt to alter the facts to suit the outcome".Indeed Sohlberg's ruling was later cancelled by a higher instance, and the newspaper was forced to print an apology.

Sohlberg's appointment should be seen within the context of recent sustained pressure on the Judicial Selection Committee, the body responsible for appointment of judges in Israel. Right-wing coalition politicians have pressed senior jurist members of the Committee to accept specific conservative judges to the Supreme Court, and passed laws to remove legal limitations on appointing the future Chief Justice, conservative judge Asher Grunis.

Justice Grunis is an opponent of the current 'activist' constitutional approach of the Israeli High Court of Justice - an approach that usually supports equality and civil rights. He was the most blatant of the 11 Justices in a groundbreaking ruling that upheld a 2003 amendment to Israel's Citizenship Law last Wednesday, writing that “human rights should not be a prescription for national suicide”.

The ruling rejected all the appeals against a 9-year-old prohibition on Israeli and non-Israeli spouses living together in Israel, if the non-Israeli spouse is a Palestinian or a citizen of an 'enemy' country. Although Israelis have the right to reside with their non-Israeli spouses in Israel, the amendment introduced in 2003 discriminates specifically against Arabs citizens, who retain family and community ties with Palestinians and other Arabs.

Only five and a half years ago, the High Court of Justice deemed the law unconstitutional but avoided cancelling it, because it was a “temporary measure” valid for one year. After that, the temporary became permanent, and the Knesset, ignoring the court, voted time and again to extend it. New appeals soon followed, until Wednesday’s ruling upheld the discrimination. One judge explained that their right to family life should be upheld, but not in Israel - an argument that can easily be used to deprive anyone of their rights, from freedom to voting rights.

Another appeal, against the notorious 'Nakba Law', which fines state-funded organisations that mourn Israel's Independence Day or reject Israel as a Jewish state, was dismissed by the Court the preceding week. This is but another symptom of the changing mood in the justice system, affected by the general decline in liberalism and democratic values in Israel.

Israel has no codified constitution. In its absence, the chief protector of its democracy has been its independent judiciary, and especially the High Court of Justice. The recent rulings by the Court illustrate the erosion in its status and are perhaps the clearest indication of Israel's slide from democracy.

This is not to say that the Israeli justice system has always adhered to International Law in the past. On the contrary, it approved many various state practices of occupation and settlement, denied Palestinian refugees’ claims, upheld torture for nine years, and still upholds the siege policy on Gaza. It has also been less than unequivocal regarding discrimination against non-Jewish citizens of Israel. However, these recent rulings and the coerced reshuffle of judges mark a new era of decline in state liberalism. Consequently, many believers in Israeli liberalism and democracy, who have until now relied on the court as a channel to finding justice, will have to find more radical ways of struggling for their rights.


Eyal Clyne is an Israeli researcher of society in Israel-Palestine. He focuses on the conflict and other Israeli political issues. Some of the posts on his Hebrew blog appear also in English and elsewhere, and some of his pieces for JNews are also cross-posted with other sites.

This article may be reproduced on condition that JNews is cited as its source.

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