In an unprecedented ruling on Wednesday, Israel’s High Court determined that it was not required to send a representative to a ceremony marking 50 years of the return of Jews to Yehudah and Shomron due to its controversial nature, even though the event was official sponsored and funded by the government.
A petition filed by the right-wing Regavim group sought to force the Court to participate in the event after its president Miriam Naor had explained publicly the day before that it would be “inappropriate” because of its controversial political nature.
The petition argued that “participation of senior members of the three branches of government in official state ceremonies is as much a part of accepted ‘constitutional protocol’ as it is binding.”
It contended, in effect, that non-participation by the Court would be unconstitutional.
Nevertheless, less than an hour before the event was set to begin, the court announced that the petition had been rejected. This came as no surprise, since Justice Naor had reiterated her position earlier in the day, and the Court was ruling on its own conduct.
Barak Medina, a constitutional law professor at Hebrew University, told The Times of Israel:
“There is no real precedent in Israeli legal history for this,” he noted, though petitions have been filed against the court in the past; they have always been over procedural motions regarding other cases, never in order to force its hand outside of the court room.
“Ultimately, the petition will have no practical effect on the relationship between the government and the court,” Medina said, “but the symbolism is unmissable.”
A spokesperson for the Justice Ministry acknowledged the conflict of interest. “They are ruling on themselves,” he said. But there was no alternative, no other judicial mechanism for ruling on the matter.
“They are the court. They decide,” he said, “for now.”
In a bizarre twist, the government, which had been named as a respondent by Regavim, took the side of the petitioners rather than the Court, in this instance a fellow respondent.
Attorney General Avichai Mandelblit, who responded on behalf of Prime Minister Netanyahu said, the event holds “special significance” and “it is appropriate that a representative of the Court attend.”
Beyond the legal curiosities on display, the issue did aggravate the already contentious relationship between the judiciary and the executive and legislative branches.
Justice Minister Ayelet Shaked (Jewish Home) wrote to Naor on Wednesday, saying: “I was sorry to hear about your decision to prevent a representative of the Court from participating…
“As you know, the creation of the ceremony was laid out in government decision number 2605 of September 4, 2017; and as such, it is a state event with the participation of top-level representatives, and among them a representative of the High Court.
“In effect, your announcement undoes the state aspect of an official ceremony and creates the false impression of an event that has a political nature. Although you wanted to avoid political controversy, behold, the goal has been missed.”
In Gush Etzion, where the ceremony was held on Wednesday night, Culture Minister Miri Regev (Likud) told reporters, in reference to Naor:
“I respect her, but she crossed a dangerous red line here in Israeli democracy.
“The government of Israel is the only one that determines what ceremony is an official one,” and asserted that Naor has no authority to boycott official celebrations.
“This is the first time that the judiciary has not attended a state event,” Regev said. “This bolsters those who boycott Israel, the BDS movement and UNESCO.”