Fighting fire with fire: The Right discovers Lawfare.

Left wing organizations have long viewed judicial activism as their best antidote to electoral failure, but that is about to change.

It seems like an axiom of political quantum mechanics that the Left is extremely well financially endowed, while the Right operates on air.

Armed with financing from European governments or governmentally related NGOs and the American based New Israel Fund, Left wing organizations have long viewed judicial activism as their best antidote to electoral failure.

Students of the court system, particularly the High Court of Justice, have remarked about the rampant proliferation of petitions from Left wing groups against ordered home demolitions, prison sentences for convicted terrorists, as well as petitions against Jewish home and road construction in Judaea and Samaria.

Other than the breathtaking efforts of Shurat HaDin, Right wing groups have traditionally eschewed the court system in favor of trying to create facts on the ground. Shurat HaDin has been remarkably effective, but their efforts have been largely against governments such as Iran or the Palestinian Authority. Their critical work has been macro in focus, and deliberately not granular.

Of course, there have been notable Right wing judicial commentators and analysts who have done important work in highlighting the overreach of the hyperactive High Court and the intrusiveness of the legal bureaucracy of prosecutors and legal advisers. Kohelet and the Movement for Governability and Democracy have been particularly effective advocates for judicial restraint and discretion.

In terms of on the ground judicial activism, there are a few Zionist organizations that have been stalwart in using the legal process to advance their particular agendas. Prominent among them has been Regavim, which has consistently pushed for Jewish land rights, and has used the legal system to confront the incursion of those rights by Palestinians in Judaea and Samaria and Bedouins in the Negev.

The Legal Forum for Israel has harnessed legal talent for pushing for better governance through court proceedings, and Lavi has also been active and effective in bringing court actions to fight for more appropriate prison conditions for convicted terrorists.

On the ground judicial activism took a major step forward recently in the wake of the decision by Im Tirtzu to help mentor the fledging Choosing Life Forum of Bereaved Families. What became apparent very quickly was the wild disparity of resources and representation that attended any judicial hearing or case in which bereaved relatives had a personal interest.

What was seen time and again is that while families could not afford their own representation, they were confronted with teams, yes, multiple groups of legal representatives on behalf of a terrorist. To note that there was no even playing field in court was to engage in understatement.

Bereaved families who had recently suffered a terrible loss now had to deal with a second injury: confronting a system in which their voices could not be heard, or at least not heard effectively, for the lack of professional representation.

This state of affairs was a major factor in convincing Im Tirtzu to start its own Legal Division. While Im Tirtzu was not new to court cases, it was required to seek out pro-bono representation or to choose to spend large amounts on retained legal representation, or else try to settle a matter.

However, with the initiation and funding of a division that could provide such representation, there soon followed a beneficial ripple impact that might not have been anticipated when the division was conceived.

Besides the ability to counter outside representation in court cases involving bereaved families or beleaguered residents of South Tel Aviv, the Legal Division soon showed its ability to be pro-active by providing an unprecedented weight and seriousness to complaints lodged by Im Tirtzu against discriminatory practices by universities and other institutions. Serious legal letters that carry the implicit threat of legal action have significantly enhanced the response and accountability of such institutions to revelations of biased or discriminatory activity.

Recent examples include opposition to the appointment of a terrorist defending lawyer to be the head of the Bar Association’s Military Courts Committee, and changing prison regulations in order to prevent terrorists from sending photos of themselves to family and friends.

In addition, the Legal Division was able to help initiate matters, thanks to research and aggressive requests for information pursuant to Israel’s Freedom of Information Act.

Just this year, this investigative ability produced the bombshell revelation that Israel has no mechanism to monitor and to enforce the return of Palestinian entry permit holders to their homes either in Gaza or Judaea and Samaria.

Ultimately, the impact of Im Tirtzu’s Legal Division and those of other Zionist NGOs is to hold our society and its institutions more accountable to its values and precepts. It is part of the effort to ensure that Israel walks the Zionist walk as well as talking the talk. It is one thing to espouse such values and aspirations, but it is another matter to follow through on those precepts and to act in accordance with them.

For the Right, the watchword is accountability, and having legal heft to help anchor calls for institutions to be true to those precepts, has had a bracing and beneficial effect.

While the resources for legal representation on the Right pale besides those of the Left, there are at least now two players on the field.

As Zionist organizations combine the strength of their commitment and passion with the seriousness of legal weight, the big winner will be Israeli society itself.

…..

Douglas Altabef is the Chairman of the Board of Im Tirtzu and a Director of the Israel Independence Fund. He can be reached at dougaltabef@gmail.com.

Im Tirtzu – Building the Zionist Dream

Im Tirtzu is a Zionist non-governmental organization based in Israel.  Its name is derived from an epigraph appended to the frontispiece of Theodor Herzl’s novel Altneuland, ‘if you wish it, it is no fairy-tale,’ rendered into modern Hebrew in Nahum Sokolow’s translation in 1903, as Im tirtzu ein zo agadah.   imti.org.il/en

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