The Gatekeeper of the Israeli Democracy

The High Court of Justice (HCJ) 

The High Court of Justice is a branch of the Israeli Supreme Court. The HCJ deals with matters involving issues of justice which do not fall under the jurisdiction of any other court.

Once again, the Israeli High Court of Justice found itself being criticized for making an unpopular decision when it overturned a decision of the Israeli parliament (Kneset), to disqualify lawmakers Haneen Zoabi, an Arab-Israeli Keneset member, and Baruch Marzel, a Jewish-Israeli former Kneset member, from running in Israel’s election on March 17, 2015.

Zoabi promotes controversial pro-palestinian ideas, that are considered by most Jewish- Israelis to be bordering treason. Marzel holds controversial anti-palestinian position that is considered by most Arab-Israeli to be bordering fascism.  The original ruling was overturned by a majority of eight justices to one. “Due to their tight schedule, the court was forced to make the decision before next Sunday [to meet the election deadline]. However, the court published their ruling on Thursday without reason.” [Haaretz].

The ruling by the Israeli High Court of Justice, although not explained yet, by an overwhelming majority of 8:1 sent a strong message to the Israeli lawmakers that the court will not tolerate attempts to deprive people from voicing unpopular opinions, as upsetting they might be, as long as they do not break the law.

This is not the first time that the Israeli High Court of Justice finds itself in unpopular position: In 1992 the Israeli lawmakers passed a Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court’s opinion violates normative human rights guarantees. The new laws made it easier for the HCJ to overturn government and lawmakers orders when it finds them to be unconstitutional.

Under the leadership of Aharon Barak (President of the Israeli Supreme Court of Israel from 1995 to 2006) the HCJ advanced a judicial activist approach, whereby the court was not required to limit itself to judicial interpretation, but rather was permitted to fill the gaps in the law through judicial legislation at common law. This approach was highly controversial and was met opposition, including by politicians. The HCJ opened the door for petitions, which was previously limited to individuals, to civil organizations such as the Association for Civil Rights in Israel  and the Movement for Quality Government. This approach helped the Israeli society fight public corruption more effectively. In 2013 the HCJ expanded its power by unseating three mayors  after they were charged with corruption, but before they were sentenced. They were re-elected in the following election. Some seeing it as a public protest  against the increasing power of the HCJ.

However, by taking strong unpopular position when it see fits, the HCJ was able to defend Israel’s position and prevent international law suites, submitted  often by pro-Palestinian individuals and organizations, to the The International Criminal Court (ICC).  

The HCJ decisions include:

  • A 1994 ruling allowing employers to provide benefits to a gay couple
  • A 1994 ruling forbidding the army from discriminating women in choosing professional military careers. Specifically, the HCJ opened the door to flight school to women.
  • The HCJ recognized conservative and reform conversions to Judaism, something that was  not recognized by the State of Israel prior to this ruling.
  • In 2004, the HCJ forced the Israeli government to relocate section of the security fence which was installed to prevent terrorist attacks on Israeli towns, in places where the fence ran through Palestinian towns in a way that it created hardship for the local population.

An interesting historical fact is that the HCJ, which is recognized in Israel and internationally, as a the gatekeeper of the Israeli democracy, was created by the British government when Great Britain ruled the country in the period between WWI and the creation of the State of Israel in 1948. This is the only governing body which remained in operation after the creation of the State of Israel.  What make it interesting is that the British do not have a similar court. It was created to meet the unique needs of the Israeli population, which included Jews and Arabs who until then were operated under the Ottoman rule.

Israel at the time was much different from any other colony under British rule: Arab attacked Jewish settlements, Jewish underground fought both the British and the Arabs, Jews were smuggled from post Holocaust Europe into Israel despite attempts by the British government to stop it. The British ruled under a mandate from the United Nations, thus, they had to answer to the UN on actions taken in Israel.

The HCJ was created to be able to handle the complexity of ruling a country which operated under a mixture of British and Ottoman laws, governed by the UN, in a place which was  fighting for independence from British rule, and the need to help the Jewish nation recover after the Holocaust. This chaotic situation was the birthplace of the great institution; the Israeli High Court of Justice.