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Tuesday, October 26, 2010

The political question doctrine gaining acceptance

In an earlier post, I noted that the government had argued to the Supreme Court that it had decided not to expel the Jews from the Amona neighborhood in the Samarian town of Ofra because it did not consider Amona to be important.

What's curious here is how the government made its argument.
Diplomatic considerations can outweigh legal ones when it comes to enforcing building regulations in the West Bank, the state told the High Court of Justice on Sunday.

It made the statement in response to a petition filed by Yesh Din – Volunteers for Human Rights, which demanded that the IDF uphold the law and demolish the Amona outpost, which is located just outside the Ofra settlement in the the Binyamin region of Samaria.


In this case, considerations that stem from the diplomatic process with the Palestinians have to be taken into account, he said. The issue is not lack of enforcement but rather of the state and the Defense Ministry’s priorities in the West Bank, Broshi said.

These decisions that are of a sensitive nature should be beyond the court’s jurisdiction, he said.

To bolster his argument, he referred to a High Court decision not to interfere with the 10-month moratorium on new construction in Judea and Samaria that lasted from November 26, 2009, to September 26, 2010.

The court refrained from acting because the issue was diplomatic, he said.

This same logic works here as well, Broshi argued. The court understood in that instance that the nation’s diplomatic agenda was at stake and that as result the court should not get involved. It should take the same stance here as well, he said.
The argument that the government is making is that the decision to destroy - or not to destroy - Amona is a political question in which the court should have no involvement. And it's citing the court's own decision in the freeze case to show that the court itself has accepted that it has no right to decide political questions. If this becomes law, it's a major change for the Israeli Supreme Court.

Nearly all Western court systems depend on two concepts to be gatekeepers that keep the court of out fruitless cases better handled elsewhere. Those two concepts are standing and justiciability.

Standing means that you cannot bring a case before a court unless you are directly affected by it.

Justiciability says that there are certain classes of cases that are not justiciable - cases in which the court should stand down from taking jurisdiction. The classic example of a case that is not justiciable is the political question doctrine. (For those of you old enough to remember, this was the main issue in Nixon v. United States - the case in which the Supreme Court ordered President Nixon to turn over the Watergate tapes. At the time, there was doubt whether the court had the power to do that, because what they were doing was resolving an argument between the legislative and executive branches. In the end, they decided that for the good of the United States, they had better find the power to do it).

What has allowed Israel's Supreme Court to step into political vacuums is the fact that it never refrained from taking cases based on the twin tests of standing and justiciability. Anyone can bring a case (directly) to the Supreme Court here, whether or not they are directly affected. And the Supreme Court - until now at least - has happily decided political questions. I'd be thrilled to see them adopt both tests. But that hasn't happened yet.


At 4:36 AM, Blogger NormanF said...

It depends on the mood of Comrade Beinisch and her leftist colleagues on any given day.

I wouldn't bet on them NOT ordering the government to proceed with uprooting the Amona revanant.


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