Some years ago, a national-religious organization whose public operations had been authorized by Knesset law found itself being challenged in Israel’s Supreme Court by the left-wing MKs who lost the Knesset vote. It was at the height of the judicial regime of Chief Justice Aharon Barak, and the legislative losers knew that even though they had lost the Knesset vote democratically, by a significant majority, they could always count on the Supreme Court to overturn Knesset votes that weren’t in line with its left-wing politics.
The astounded directors of the aforementioned organization went to a top lawyer in Tel Aviv to represent them in their defense in the Supreme Court case. Said lawyer, unlike his clients, was secular and not politically to the right. Nonetheless, as befits a proper lawyer, he took the case and committed himself to present the best defense possible for his clients. In this case one might have thought it an easy task; after all, the law was clearly on their side. However, this lawyer, who had spent two decades in illustrious government service prior to venturing out to the private sector, warned his clients that while he could produce a 400-page defense that would prove their case, he could only buy them time as in the end they would inevitably lose, irrespective of whether legal justice was on their side.
He patiently explained to them that the Supreme Court’s judges do not necessarily issue their rulings based on legal truths, but all too frequently on the basis on what will be acceptable with those they drank coffee with on Friday nights. Or, simply put, political correctness trumped legal justice. This sad state of affairs has apparently not significantly improved since the hyper-activist days of the Aharon Barak legal dictatorship. His judicial acolyte and the now-former chief justice, Dorit Beinish, held the torch of left-wing ultra-secularist politics high, and in the strange case of Migron ruled that the government had to evacuate the decade-old community of more than 50 families because it was purportedly built on private Palestinian lands.
That’s odd, because the honorary Ms. Beinish, who issued her ruling in response to a Peace Now petition, never required the purported Arab landowners to prove their ownership before waving away the rights of the Jewish residents of Migron with her legal wand.
A highly questionable precedent
In fact, Migron’s residents begged the Supreme Court not to automatically accept the Peace Now petition unless the basis for its claims against them could be proven. The case was already being heard in the Jerusalem Magistrates Court, which is the place to prove or disprove such ownership claims, as it has the legal tools to examine purported title deeds and determine their validity. Migron’s request from Beinisch to wait for the lower court to complete its review and issue a decision was reasonable in a legal system based on law and justice. Unfortunately, our Supreme Court, known as the “High Court of Justice,” may be “high” above the simple citizens of the state, but its connection to “justice” appears to be illusory.
Despite the fact that Migron’s lawyer made an iron-clad case proving the land in question did not belong to the Palestinian plaintiffs, and the Peace Now lawyers representing them, unable to prove otherwise, simply withdrew their case against Migron, the damage was already done. Beinisch refused the aforementioned reasonable request and summarily issued her highly questionable precedent-setting legal fiat that Jews, unlike Arabs, could build communities only on state-owned lands. This strange decision not only challenged Migron but a number of other already-established communities and fully built permanent neighborhoods in Jewish towns in Judea and Samaria.
Had Beinisch conducted herself as an unbiased judge without a political agenda, and waited for the lower magistrate’s court to determine whether there was any legal basis for the Peace Now petition, she could easily have avoided such a blatant perversion of justice. But since when does legal proof figure into left-wing petitions?
In a fair world, a world where the judges of highest court in the land functioned without open political bias, the Peace Now petition against Migron would have been dismissed the minute that Peace Now failed to produce the alleged private Palestinian owners. But in today’s Supreme Court, Peace Now and other radical left-wing organizations know that their accusations require no proof.
Peace Now, it appears, was unable to locate the Palestinians they claimed owned the land in question. So, having no actual evidence to substantiate their claim in the lower court, they withdrew their petition. But it didn’t matter; they knew that in the Supreme Court their unproven accusations would be accepted. And Beinisch’s court came through, deciding to declare all non-state-owned land in Judea and Samaria to be Arab land. Why? Because.
Joubran’s ironic statement
Migron’s residents publicly offered a one-million shekel reward to anyone – Jew or Arab — who could prove in court that the land on which Migron was built belonged to them. How naïve. Those hardy souls that, with the encouragement of the IDF at the time — during the height of the Palestinian terror war of a decade ago — went to build a critically important settlement on a barren, rocky hill overlooking the strategic main road, Route 60, still believe truth matters. Imagine that. But that was put to rest after the Supreme Court rejected the compromise agreement between Migron’s residents and the government of Israel.
Following the aforementioned ruling, Israeli Arab Supreme Court Justice Salim Joubran made what is clearly one of the more ironic statements of the week:
What would the rule of law look like if the ruling wasn’t followed?
Joubran, who is so concerned with implementing the rule of law regarding the Jewish homes in Migron, has yet to similarly chime in regarding the estimated 30,000-plus illegally built Arab houses in Judea and Samaria and more than 10,000 illegally built Arab houses in municipal Jerusalem.
I have no problem with Justice Joubran, a Christian Arab, not singing “Hatikvah,” Israel’s national anthem, at a public gathering a few weeks ago, considering the clear Jewish content of the anthem. After all, he doesn’t put on tefillin either, as one pundit noted at the time. But as a judge, I expect him to be fair and not selective in his judicial opinion. On the other hand, why should he be expected to be better than the biased Jewish Supreme Court justices?
I don’t know what action has to be taken to avoid confrontation on August 1, the date by which the Supreme Court ruled the government of Israel is to carry out the previous strange ruling of Beinisch’s court, but it behooves the government and the Knesset to act fast. For the time being, to paraphrase the Bard, something is rotten in the state of Israel.