The president of Israel's Supreme Court, Justice Esther Hayut, gave an impassioned and historic speech this month criticizing the radical overhaul of the judiciary proposed by Prime Minister Benjamin Netanyahu's new far-right government, which she called a "plan to crush the Israeli judicial system."
"This is an unbridled attack on the judicial system, as if it were an enemy that must be attacked and subdued," she said of the scheme, which would significantly weaken the Supreme Court's authority. She warned that the plan would deal "a fatal blow" to Israel's "democratic identity" by turning the judicial branch of government "into a silent branch."
To make her point, Hayut cited eight examples of important Supreme Court rulings that, like every word in the carefully curated speech, were thoughtfully selected. According to the chief justice, these rulings exemplify "one of the major roles of a court in a democratic country… effective defense of human rights and civil rights." Protecting the rights of soldiers and of LGBT persons; defending religious rights; safeguarding the rights of children with special needs; installing shelters at schools in Israel's southern communities near Gaza; upholding freedom of expression and social rights—Justice Hayut was certainly judicious in her choice of rulings to mention. She was equally careful with what she chose to leave out.
The president of the Supreme Court made no mention whatsoever of Palestinian human rights. This omission cannot be accidental. After all, Palestinians are a large minority within Israel proper and make up half the population in the entire area between the Jordan River and the Mediterranean Sea. Yet somehow, exactly when she was lauding the court's "effective defense of human rights and civil rights in the country," Hayut overlooked half the people who live under Israel's control—even though they are the group that suffers the broadest and most severe violations of their rights, which are ongoing. How can one honestly talk about protecting human rights in Israel without even mentioning these human beings?
As in the past, Israel's Supreme Court continues to faithfully play its role in this regime of Jewish supremacy.
- Hagai El-Ad
Hayut chose carefully. To please her Jewish audience, she mentioned no ruling concerning Palestinians, on either side of the Green Line (her reference to the Hassan case, regarding the Income Support Law that was ruled unconstitutional, made no dent in this wholesale omission).
The truth is, she had a wealth of examples to choose from. She could have cited the rulings that greenlighted the expulsion of entire Palestinian communities in the West Bank, such as Khan al-Ahmar or the communities of Masafer Yatta. She could have talked about the regular sanctioning, in hundreds of cruel rulings, of collective punishment in the form of demolishing the homes of Palestinian families whose relatives attacked Israelis. She could have mentioned the rulings that advanced the takeover of Palestinian land or approved Israel's policy in Gaza. She could have noted that the Supreme Court has upheld the "Admission Committees Law," effectively banning Palestinians from hundreds of communities in Israel; the "Nakba Law," imposing limitations on commemoration of the Nakba; the "Citizenship Law," barring Palestinian spouses from gaining legal status in Israel; and the "Nation-State Law," exclusively defining the state on ethnic Jewish terms.
Yet the president of the Supreme Court chose to note none of the above, and to thus play exactly the role she was cautioning against—that of the "silent branch" of government.
Why did Justice Hayut choose silence? Of course, she wanted to defend the liberal image of the Supreme Court and of the Jewish state. That is why she could not flaunt the court's role, under her leadership and that of her predecessors, in legally approving the systemic trampling of Palestinians' human rights under the Israeli regime. It simply doesn't add up: a rich history of sanctioning systemic harm to Palestinians with a proud defense of human rights. The only choice she had was to remain silent—in a dramatic, landmark speech that purported to speak for human rights.
Further, the current debate in Israel is not about the actual oppression of Palestinians—a matter of broad consensus—but about how and to what extent their rights should be trampled. As in the past, the Supreme Court continues to faithfully play its role in this regime of Jewish supremacy. Yet growing numbers of Jews in Israel have internalized "the fundamental principles of the system" and now want more, faster and stronger. Destroy entire Palestinian communities—great, but why take so long? Demolish family homes—sure, but how come they have the (formal, ineffectual) right to appeal? Shoot protesters in Gaza—of course the Supreme Court won't intervene, but why even discuss it? Legalize admission committees—wonderful, but why limit it geographically? The Citizenship Law—a work of true beauty, but why make it a Temporary Order (temporary for 20 years and counting)? The Nation-State Basic Law—thanks for the seal of approval, but shame on you for even hearing the petition.
The deafening silence at the heart of Hayut's speech hinted at what is usually kept under heavy wraps: that Israel's Supreme Court is a stronghold of justice for Jews only.
- Hagai El-Ad
We are witnessing the utter intellectual collapse of the self-righteous policy the Supreme Court tried to lead. Had Hayut even been willing to discard this liberal image and mention some of the hundreds of rulings in the service of Jewish supremacy, it would not have been enough to endear the court to the public—for the attempt to ride the tiger, keep it in check and set its pace is going to hell before our eyes. That is the natural course of a regime whose internal logic promotes the supremacy of one group over another.
Hayut was not sincere in talking about defending human rights from being "crushed," because what she is seeking to protect is the role of the Supreme Court in further crushing Palestinian human rights. Yet she was completely honest in seeking to defend the "fundamental principles of the system"—a system that happens to be a fundamental aspect of the Israeli regime that must be completely overhauled.
The deafening silence at the heart of Justice Hayut's speech hinted at what is usually kept under heavy wraps: that Israel's Supreme Court is a stronghold of justice for Jews only. It does not champion universal human rights, but the human rights of Jews, in a Jewish state.
Editor's note: A version of this article was originally published in Hebrew in Local Call (Sikha Mekomit), a Hebrew-language news site.