21 July 2010
By
Jonathan Cook
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 criticised 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 neighbouring
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 clearcut. 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.”
Jonathan Cook is a writer and journalist based in
Nazareth, Israel. His latest books are
“Israel and the Clash of Civilisations:
Iraq,
Iran
and the Plan to Remake the
Middle East” (Pluto
Press) and “Disappearing Palestine:
Israel's Experiments in Human Despair” (Zed Books).
His website is
www.jkcook.net.
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