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"There are still judges in Jerusalem"

This week I won a dubious award: A Supreme Court ruling breaking new land was named after me.


It is an honor I would relinquish with pleasure. My name appeared at the top of a list of applicants, organizations and individuals asking the court to repeal a law passed by the Knesset. Israel has not written a constitution. This unusual situation dates back to the childhood of the Israeli state because David Ben-Gurion, who was strictly secular, failed to reach any compromise with the Orthodox parties, who insisted that the Torah is already a constitution. So instead of a constitution, we have some basic laws (basic laws) which covers only a few fields, and a plethora of Supreme Court judges who give precedent. This court has gradually gained the right to repeal Knesset-passed laws that violate the non-existent constitution. Based on the latest Knesset, Likud members on the far right wing have competed with each other to strike the Supreme Court in one way or another. Some would fill the Supreme Court with right-wing judges, others wanted to radically delineate the jurisdiction of the court. It peaked when a group of Likud members in the far right drove through an avalanche of laws that were clearly unconstitutional. One of them, the most dangerous, was a law that made it illegal to boycott the state of Israel, and – with a bleak addition: "of territories controlled by it". Goods from the settlements. This revealed the real purpose of the operation. A few years earlier, Gush Shalom, our peace organization, had called for a boycott of products from the settlements in the occupied territories. We also published a list of these products on our website. Many other peace organizations joined the campaign. At the same time, we tried to get the EU to do something similar. Israel's agreement with the EU, which exempts Israeli goods from customs duties, does not cover settlements. But the EU was used to closing its eyes. We spent a lot of time and effort reopening them. In recent years, the EU has kept these goods out. They have demanded that all products "made in Israel" be marked with the actual place of origin. This week, 16 European foreign ministers requested that the management of EU foreign affairs must demand clear labeling of all goods from the settlements. The law passed by the Knesset has not only criminal aspects, but also civil ones. People who call for a boycott can not just be imprisoned. In addition, they may be sentenced to pay substantial damages without the complainant having to prove that he or she was in fact harmed as a result of the call for a boycott. In addition, organizations receiving public support of various kinds under the existing legislation would lose these with the new law, which would make their work for peace and social justice even more difficult. Just minutes after this law was passed, Gush Shalom and I personally sent our inquiry to the Supreme Court. It was prepared well in advance by lawyer Gaby Lasky, a talented young lawyer and avid peace activist. My name was at the top of the list of those behind the complaint, thus the case is called "Avnery against the state of Israel". Lasky presented the case in a logical and sensible way. Freedom of expression is not guaranteed in Israel by any special law, but is derived from several basic laws. A boycott is a legitimate democratic act. Any individual can decide to buy or not buy anything. In reality, it is full of boycotts in Israel. Stores that sell non-kosher food, for example, are routinely boycotted by religious people, and posters calling for such a boycott of a specific store are spread widely in religious neighborhoods. The new law does not prohibit boycotting in general. It points to a political boycott of a certain kind. But political boycotts are common in any democracy. They are part of practicing freedom of speech. The most famous political boycott was actually implemented by the Jewish community in the United States in 1933, after the Nazis had come to power in Germany. In response, the Nazi regime called for a boycott of all Jewish businesses in Germany. I remember the date, 1. April, because my father did not let me go to school that day (I was 9 years old, and the only Jew in my school). Later, all progressive countries joined a boycott of the racist regime in South Africa. That boycott played a major (but not crucial) role in the removal of the regime. Decided. A law can generally not force a person to buy a normal item, just as it can not prohibit someone from buying it. Even those who drafted this new Israeli law understood this. Therefore, the law does not punish anyone for buying or not buying. It punishes those who encourage others to refrain from buying. In this way, the law is clearly an attack on freedom of expression and on a non-violent democratic act. In short, it is basically a failed anti-democratic law. The court that ruled in our case consisted of nine judges – almost the entire Supreme Court. It happens very rarely, and only when an exceptionally important decision is to be made. The court was presided over by Supreme Court Justice Asher Gronis. This in itself was significant, since Gronis had already resigned in January, as he had to at the age of 70. When the position became vacant, Gronis had become too old to have the role of Supreme Court leader. Under the Israeli laws in force at the time, a Supreme Court judge could not become the head of the court when the time to retire was too close. But Likud was so eager to give him the job that a special law was passed that made it possible for him to become a Supreme Court justice. Furthermore, a judge who has had a case, but has not had it completed in time before retirement, gets an extra three months to complete the work. It may seem that even Gronis, Likud's protégé, had anguish with this special verdict.

In reality, it is full of boycotts in Israel.

His signature was decisive. The court was divided – four against four – between those who wanted to repeal the law and those who wanted to keep it. Gronis joined the group that was for the law, and the law was passed. Now it is the law of the land. Part of the original legal text was deleted – unanimously. The original text said that any person – that is, a resident – who claims that the boycott has harmed him, can claim unlimited compensation from anyone who has called for the boycott in question, without needing any proof of actual harm. Now the person claiming compensation must prove the damage. During the public hearing of our case, we were asked by the judges if we would be satisfied with the words "territories controlled by Israel", so that the boycott of the settlements was not affected by the law. We replied that we in principle adhered to the requirement to repeal the entire law, but that we would appreciate that these words were removed. But in the final verdict this was not even done. By the way, this creates an absurd situation. If a professor at Ariel University deep in the occupied territories claims that I have called for a boycott of him, he can sue me. Then my lawyer will try to prove that my call remained quite unnoticed and therefore did no harm, while the professor must prove that my statement had such an influence that crowds of people were enticed to boycott him. Legal activism. Many years ago, when I was still the editor-in-chief of the news magazine Haolam Hazeh, I decided to choose Aharon Barak as Man of the Year. When I interviewed him, he told me how his life was saved during the Holocaust. He was a child in the Kovno ghetto when a Lithuanian farmer decided to smuggle him out. This simple man risked his own and his family's life when he hid the boy under a potato jar to save his life. In Israel, Barak eventually became an excellent lawyer, and eventually a Supreme Court justice. He led a revolution called "legal activism", and claimed, among other things, that the Supreme Court has the right to delete any law that is contrary to the (unwritten) Israeli constitution. It is impossible to overestimate the importance of this doctrine. Barak did more for Israeli democracy than perhaps any other person. His immediate successors – two women – adhered to this rule. That is the reason why Likud was so eager to get Gronis in place. His doctrine can be called "legal inaction". During the interview, Barak said to me: “Think about the fact that the Supreme Court has no armies to implement its decisions. It is completely dependent on the attitude of the people, and can go no further than the people are willing to accept! ” I still remember this statement. Therefore, I was not too surprised by the Supreme Court ruling in the boycott case. The court was scared. It's that simple. And so understandable. The battle between the Supreme Court and Likud's right wing is approaching a climax. Likud has just won a decisive election victory. The leaders of the party make no secret of the fact that they intend to carry out their unfortunate plan to abolish the independence of the court. They want to allow politicians to control the committee that appoints Supreme Court justices, and completely remove the court's opportunity to repeal unconstitutional laws passed by the Knesset. Menachem Begin used to quote the miller in Potsdam, who in a private quarrel with the king exclaimed: "There are still judges in Berlin!" Begin said, "There are still judges in Jerusalem!" How long will it last?
Commentator in Ny Tid. Avnery is a former member of the Knesset in Israel. Israeli journalist and peace activist (born 1923).

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