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If the State does not obey the law, why should we?
By: Yishai Menuhin (guest article)
Thursday 24 October 2013
For 16 years the State has avoided evacuating Amona, despite countless court orders. And the response to the High Court of Justice’s ruling on the Infiltration Law has been similar. Yishai Menuhin wonders if the time has come to consider civil disobedience.
Our expectations of the various branches of government – the legislature, the executive and the judiciary – are quite simple. We, the citizenry, must obey the law and the courts, because “the law is a supreme interest in every society, and a condition of its existence”, as former Attorney-General and retired Supreme Court judge Yitzhak Zamir put it. They, however, do not consider themselves bound to obey the law or the courts. The response of the government in general and the enforcement branch in particular to the court orders to dismantle the Amona outpost embody perfectly this unacceptably flexible attitude to obeying the law and the courts.
From the first order to dismantle the outpost was issued some time in 1997 to the government’s promise to evacuate the outpost by the end of 2012, through many years of court orders and repeated postponements, the Attorney General, who is supposed to protect the rule of law, and the Supreme Court, supposedly the defender of the rule of law, have been enabling the government to avoid obeying the law.
Now the government, through the Attorney General, is again asking for a postponement, as was reported last week. Again we see the widespread contradiction between theory and practice, between the declarations by members of the judicial authority and those of the enforcement branch about the need to act in accordance with the law, and the government’s illegal behaviour. It is a contradiction that we have learned to live with in recent years. Perhaps the time has come to stop living with it. If the authorities do not obey the law, why shouldn’t we too stop obeying laws we don’t like?
The government, for example, is not obeying orders from the High Court of Justice, which struck down the amendment of the Infiltration Law and ordered the State to begin release detained immigrants immediately, and the Interior Minister is seeking “creative” ways to circumvent the ruling. Should we too then, not also thing about creative ways to avoid obeying the laws and amendments that the Interior Ministry is promoting?
Double standards in enforcement
True, we have been educated to internalize that we must act in conformity with the law if we want to be considered normal members of society and be treated appropriately by those around us. But as long as the State Attorney and judges of the Supreme Court permit the government and many public agencies to disobey the law brazenly and without consequences, the principle of the universality of the rule of law should permit us too to avoid consequences for our disobedience of the law. As long as the government, the enforcement branch and the courts exhibit blatant indifference to the executive authorities’ disobedience of the law when it contradicts their political agenda, they should also take into consideration our right to disobey. As long as the Attorney General and the judges of the Supreme Court exhibit intolerable understanding for the government’s violations of the law and promote an overt policy of double standards in enforcement, we too should consider requesting equality of non-enforcement.
This selective understanding of the law has caused the State to take a similar approach towards citizens who take action against right-wing government policies. For example, those who demonstrate against the Occupation are arrested for their disobedience. On the other hand, the enforcement agencies exhibit special tolerance towards lawbreakers from the Right, who often have “good justification” for disobedience whenever it is convenient to them.
When the public authorities see the duty to obey the laws and the courts as applying only to part of the citizenry and not to themselves, we do not have to act in accordance with their selective understanding of the rule of law. The time has come to get an egalitarian enforcement system that obeys the laws and the courts, and if that is not possible, the time has come to consider comprehensive civil disobedience.
Dr. Yishai Menuhin is the director of the Public Committee Against Torture in Israel and the chairman of the Amnesty International Israel.
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Translated from Hebrew by Mark Marshall
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