A right to justice?

Yesterday's Haaretz featured an op-ed piece by Karni Eldad that argued that Israel's High Court of Justice and particularly its President (chief justice) Dorit Beinisch, is biased towards "liberal" and leftist causes and against "conservative" (be it religious or political) rightist issues. It's an old argument which was especially prominent during her predecessor's, Aharon Barak, term as President who believed that everything is judicable--amenable to  a Court decision and was viewed as both liberal and a judicial activist (i.e., legislating from the bench). (His name and reputation was alluded to during Elena Kagen's US Supreme Court nomination hearings before the US Senate).

Citing a comparative study, conducted by Regavim (a NGO which monitors and documents illegal activities on state land), of five years of petitions to the Court submitted by Arabs (and their leftist supporters) against illegal construction by settlers and those submitted by rightest organizations against illegal Arab construction, she argues that the Court has consistently sided with those on the left.

She writes:

[T]he report examined the process' procedural elements ... like the time given to respond, the number of hearings held, the time elapsed between hearings and the composition of the panels of presiding judges.

For example, how much time on average does the High Court of Justice give a respondent to submit a preliminary reply? If the petition comes from the left, it is 25 days. On the other had, if the petition comes from the right ... 88 days to reply. Even before the arguments have been heard, the court can issue an interim injunction. Here the finding is perhaps the most glaring: In 90 percent of petitions submitted by the left and the Arabs, the court issued an interim injunction, while in cases of petitions by the right the number is zero. Not once.

Now for the hearing itself, before a three-judge panel. The claim is that the considerations when choosing judges are completely practical. If so, why is it that in 60 percent of the petitions submitted by the left, Beinisch is present at the hearings, as opposed to zero when the petitions are from the right?

If you think all this is coincidental, see how many days it takes the court to set a date for a first hearing: 389 days for a petition from the right, 177 for a leftist-Arab petition. Even when it comes to interim injunctions, the gap is glaring: 35 percent of leftist petitions produce such injunctions, zero in cases of rightist petitions. In the hearings themselves, the court is quick to decide when considering rightist petitions: The average number of hearings held are 0.5 for the right and 1.9 (almost four times more) for the left.

The report is certainly damning of the High Court, and I expect that the facts are accurate. But is is just (another) partisan missive how the Court is out of touch with the common people, i.e an elitist left wing club, or is it a demand for a public debate on the role of the Court and the judiciary in general?

My sense is it's more the former than the latter. Though I would certainly welcome an opportunity to examine the relationships between and operations of the three branches of government (assuming an American model), the Executive, Legislature and Judiciary. I sense, though, that it would be extremely complex and complicated due to the interweaving of special interest groups, political expediency (on the part of the government to hold its coalition together) and the (benign ?) neglect which has created precedent and inertia for change.

What is clear, is that to most Israelis, as demonstrated by a recent poll, the court is not to be highly trusted to advance a sense of justice and equal protection under the law. The Courts (as well as the police and political system) are not to be trusted and respected.

It's difficult to create and then maintain a robust democracy if the societal institutions are not trust-worthy.

Or, as the op-ed piece ends with a quote from the first President of the Israel Supreme Court, Shimon Agranat:

there is nothing more destructive to a society than a sense among its members that they are subject to a double standard. The sense of inequality is one of the harshest feelings.