Politics versus the Court

Politics versus the Court

Gilbert N. Kahn is a professor of Political Science at Kean University.


Believe it or not the on-going confrontation between the Israeli Government and the Israeli Courts makes some of the American public’s frustration with the U.S. Supreme Court seem like child’s play.  In fact in recent times with the exception perhaps of Bush vs. Gore in 2000, America and its political leaders still maintain a healthy respect for the Court. While this conceivably might explode in a few weeks after the Supreme Court rules on the constitutionality of the Affordable HealthCare Act’s, it bears no resemblance to the constant confrontation over the past several years between the Israeli Court and the country’s political leaders.

Most of the political challenges from the Government to the decisions of the High Court have come over the issues of settlement policy or religion. The newly expanded Netanyahu led coalition faces maybe at least two major confrontations with the Court in the next three months, if it does not follow the recent decisions of the Court. While Mofaz and the Kadima Party publically may have suggested that they were ready to engage these issues, it is not at all clear if they wanted to be part of what will inevitably give the Government a political black eye no matter how these fights conclude.

The easier of the two issues is replacing the Tal law on military or national service for the ultra-Orthodox, haredim, which the Court has ordered to be in place by August 1. Deferments for haredi men from performing national service or military service was deemed unconstitutional by the Court, and the State was ordered to construct a more appropriate and equitable arrangement for equal service. Kadima has championed the need for such a change and will undoubtedly now join Yisrael Beitanu (the party of Foreign Minister Avigdor Lieberman) to try to push the Government to do what it has avoided to enact to date as it sought not to avoid having the haredim bolt from the coalition. With the expanded Government now in place, there is a distinct possibility that this is precisely what will happen as most of the Israeli public wants action as well. It is not clear if the High Court will tolerate any further deferral of the Tal law revision which has already repeatedly made the High Court look either impotent and/or foolish.

The settlement issue truly poses the potential of a mini-civil war in Israel if the Government moves to evacuate the 30 families in Ulpana from five buildings which were constructed on private Palestinian property on the outskirts of the settlement of Beit El. The Court has ordered action be taken by July 1. If, however, the Knesset now passes legislation to permit Ulpana to remain, it will mean that ultimately all illegal settlements will become legal by statute.

Assuming the Court cannot develop a rationale to circumvent such action by the Knesset, the Court truly will have been marginalized. Everything done will have been legal, but the politicians will have made the Courts look ridiculous. At the same time there likely will also be a broad based Palestinian and international condemnation against the farce being made by the Israeli Government of the role of an independent judiciary; to say nothing of Israel’s commitment to a peace process.

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