Democracies need to have an independent judiciary in order to defend civil liberties which can easily be trampled on by majority opinion swayed by alarmist media or politicians seeking to exercise power. But courts, too, can be caught up in the hysteria of the moment or be subject to political pressures. When that happens, democratic institutions are in severe danger.
The High Court of Israel has been an important defender of civil rights in Israel. Its courageous decision that the proposed ‘wall of separation’ placed an illegal burden on Palestinian residents openly challenged the government’s authority and reminded the country that the issue of boundaries involved moral questions. Similarly, its much praised decision regarding torture upended its own former Chief Justice’s ruling, and may become an exemplary model for the United States Supreme Court; in fact, Aharon Barak briefed the American Court on the fate of the decision on a recent American visit. But courts can come to feel that if they rule too often against their government, if they extend themselves too far in protecting minorities they lose the support of the people and then their very ability to decide these matters may be challenged.
This is what seems to be happening currently in Israel. Almost all Palestinians are no longer permitted to drive on a main roadway into Jerusalem, Highway 433, one frequented by settlers, (according to an article in the New York Times, some 40,000 Israeli citizens use the highway each week but few Palestinians) though the land to build the roadway was confiscated from Palestinians and though the Palestinians were told that the road was being built for their use. In fact, in earlier representations to the court, the government of Israel defended the confiscation of land on these very grounds. Now it emerges that documents dating back to the ‘60’s and 70’s, published by the Israeli journalist Gershom Gorenberg, demonstrate that Israeli planners intended this road as a bypass highway for settlers at the earliest stages of planning. Though it would appear that the court itself was lied to, the High Court has issued a temporary ruling allowing the government to restrict the use of the highway for the next six months. The grounds for the ruling were that the government now says that it intends to build a parallel road for Palestinian vehicles.
The New York Times quotes Dan Izenberg writing in the Jerusalem Post as seeing the court’s decision as the consequence of political calculation, “The High Court in this case cannot stray too far from the interests of the Israeli public, especially at a time when it has more than its share of enemies,” he writes. “The court knows that Israelis who rely on Highway 443 would not easily accept a ruling that causes them such inconvenience.”
As we said at the beginning, any democracy is likely to go astray when its highest court is afraid to take courageous stands in favor of civil liberties. Aside from issues of equity, the danger is that the court will increasingly accede to a system of ‘separate but equal.’
“There is already a separate legal system in the territories for Israelis and Palestinians,” Limor Yehuda, who argued the recent case for the civil rights association on behalf of six Palestinian villages said to the New York Times. “With the approval of separate roads, if it becomes a widespread policy, then the word for it will be ‘apartheid.’”
