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Bias Parading as Justice Print E-mail

By Sarah Honig
May 15, 2008

I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations. "James Madison"

The fact that political science professor Ze'ev Sternhell received the Israel Prize as Independence Day drew to a close last week was nothing but a proclamation of prejudice by the High Court of Justice, because that same court had 11 years previously deprived the late Shmuel Schnitzer of the prize awarded him.

In effect, Israel's highest-ranking judges had thereby told the country's citizenry that they're bound by no precedents and are free to operate arbitrarily in the spirit of "different strokes for different folks."

This is worse than an acknowledged double standard, because the double standard here is denied. The affectation of egalitarianism is maintained despite blatant partiality in how the law is applied. When different people are held accountable to different standards, contrary to rhetoric, double standards become outright hypocrisy.

In the run-up to Independence Day the highest court in our land managed to outstrip even its own unrivaled record for disingenuousness.

Nevertheless, the remarkable new record the justices set failed to generate even mild commotion. Why? Because the media approved. Our courts get away with colossal travesties because Israel's legal and journalistic cliques avidly promote the same agenda. Democracy's watchdogs appreciate and heartily applaud judicial service to the beautiful people's beautiful causes. Hence no squawk was raised. The anesthetized public was left unaware of what the self-appointed guardians of its collective conscience prefer it not dwell upon.

WHAT IS a legal precedent? It's a keystone case where a principle or rule had been established, which ought to guide courts when judging subsequent cases with analogous issues, patterns or facts. Such a landmark judgment, for instance, was handed down in 1997 when the court referred the decision to confer the Israel Prize on former Ma'ariv editor Schnitzer back to the awards committee, which then predictably backtracked.

Mild-mannered, soft-spoken Schnitzer was disqualified because of an August 19, 1994 op-ed - one in a highly prolific 59-year-long career - in which he warned against the high incidence of HIV among the Falash Mura. The anti-Schnitzer ruling won widespread endorsement from talking heads and trendy scribblers. Schnitzer, outspoken though never politically active, was perceived as being somewhat to the right of what they pronounced to be center. Though no one would admit it, that was his undoing.

Sternhell, nobody can dispute, is one of the shrillest spokesmen of Israel's far left. That makes him the darling precisely of those who were out to get Schnitzer. Like Schnitzer, Sternhell too publishes op-eds frequently. Among his more memorable, though hardly unique pieces, was one that saw light in Davar on April 4, 1988. "Only those ready to storm Ofra with tanks," opined Sternhell, "will stem the fascist tide which threatens to engulf Israel's democracy."

On May 11, 2001 he expressed understanding for terrorists and advised them whom to target in pursuit of greater effectiveness. "For many Israelis, perhaps the majority of voters," he presumed to claim, "there is no doubt about the legitimacy of armed resistance in the territories proper. Were the Palestinians wise, they would concentrate their struggle against the settlements... instead of placing bombs west of the Green Line."

SUCH EXCERPTS weren't deemed incendiary enough by the court to warrant the same harsh comeuppance as was meted out to Schnitzer for incomparably less. Sternhell's statements, the court decreed, "are negligible in comparison to his life's work." This, regardless of the fact that Sternhell's op-eds are numerous and unfailingly consistent in their abrasiveness against a sizable segment of the population. The politically-incorrect article which rendered Schnitzer ineligible for a consensual national tribute stood alone among many thousands, and hardly reflected his life's work.

Justice Edna Arbel elaborated and determined that it's "wrong to fault any member of a democratic society for exercising his right to express views." She noted that "there are those who assert that Sternhell excluded himself from the consensus," but she "doubts it is easy to delineate the boundaries of such consensus." The fact that Sternhell "may have hurt some feelings ought not to detract from his overall achievements."

Her logic would be acceptable were these very criteria also applied to Schnitzer. But they weren't. Schnitzer's freedom of expression was encroached upon. In his case the court set an interventionist precedent by taking it upon itself to declare who is unworthy of the prize for having excluded himself from the consensus. That interventionist precedent was now expediently thrown to the wind.

THIS COURT'S political tendentiousness is unswerving, particularly when it pro-forma attempts to shirk its notoriety for being the world's most meddlesome court. We won't even go into abundant examples of its attempts to grab powers from the legislative and the executive. A non-elected judicial oligarchy that keeps replicating itself according to a fixed ideological mold skews Israeli democracy in democracy's name.

The court's true face emerges from behind the mask especially when it apparently seeks to debunk its ultra-interventionist stereotype. Where this court chooses not to intervene is as meaningful as where it intrudes. Indeed, its ostensible non-intervention is essentially interventionist as well, since no matter what this court does, its bottom line inevitably chimes with the interests of the Left. You can bet your bottom shekel on it.

We are left with overbearing bias parading as justice. In the words of Robert Bork, one of America's prominent critics of judicial activism: "the pride of place in the international judicial deformation of democratic government goes not to the US, nor to Canada, but to the State of Israel." In his book Coercing Values: The Worldwide Rule of Judges, Bork argues that "Israel has set a standard for judicial imperialism that can probably never be surpassed, and one devoutly hopes will never be equaled elsewhere."

Only judicial imperialists can autocratically set precedents and then ignore them in similar circumstances. Only what suits their entrenched predispositions counts. This brings us back to the warning sounded by America's fourth president, father of its constitution and blueprinter of its then-revolutionary three-branch system of government.

 

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