Dina Zilber, the deputy attorney general, was the person behind the amendment to the Prevention of Infiltration Law. The High Court rejected the first amendment. Zilber worked very hard to prepare the second amendment, which should have passed the High Court's test.
It didn't help. The High Court rejected not only the legislature's discretion but also the discretion of the advisor behind the law and of the attorney general who backed it.
Zilber is not just an advisor. She also has a sort of judicial role. She was the person who was supposed to rule on the decision made by National-Civil Service Administration Director Sar-Shalom Jerbi to remove B'Tselem from the list of bodies where one can do national civilian service.
Zilber wrote a long-winded opinion on the issue, which looks like a judicial decision. It turns out that she is in love with judicial activism too. The High court struck down her amendment, and she struck down Jerbi's decision.
In the infiltrators affair, there was a violation of basic rights. The argument revolved around proportionality. In the B'Tselem affair there was no violation of any right, as there is no right given to any political body to receive aid from the state. In both affairs, the legal element thought it was smarter. Both affairs point to a system failure.
Zilber's opinion finds it difficult to distinguish between a democratic society's duty to allow different organizations – including B'Tselem – to operate and the state's authority to decide which body to assist. Jerbi's decision was political in the democratic sense of the word. Zilber's decision was political in the dictatorial sense. Dictatorship of the law. Jerbi's decision is reasonable and inevitable. Zilber's decision is clearly unreasonable.
Why? B'Tselem Director Hagai Elad has the right to refuse to call Hamas a terror organization. The organization's past leaders (Anat Biletzki and Oren Yiftachel) have the right to support the "right of return" (which basically means Israel's destruction as a Jewish and democratic state). The organization has the right to appoint a refusenik, David Zonsheine, as its chairman.
The organization has the right to include on its public council a person like Hussein Abu Hussein, who says that Israel is a monster and that he wishes to step on its head, and recommends moving from talk to action. And the organization has the right to announce that it is "proud of his membership" in its management after he made these defamatory comments.
The organization has the right to employ a field researcher, Atef Abu a-Rub, who is a Holocaust denier (after denying it, B'Tselem admitted that Abu a-Rub said the things attributed to him). The organization has the right to receive a donation from Bubbes and Zaydes (BZP), a body which endorses the BDS (boycotts, divestment, sanctions) movement against Israel. The organization has the right to cooperate with one of the darkest bodies in the international arena (the United Nations Human Rights Council).
That's democracy. In democracy, different bodies have the right to be part of the demonization campaign against the state. But since when is it the state's duty to assist such bodies? I searched in Zilber's opinion for one precedent, one state which supports bodies like B'Tselem. There is no such thing. There is no need for dozens of pages of legal acrobatics to understand the obvious.
Late judge Menachem Elon once wrote, during a dispute with judge Aharon Barak, that there is a difference between the rule of law and the rule of the judge. The years have gone by. Professors Andrei Marmor and Menachem Mautner, who are not rightists, have argued each in his own way that the legal system is becoming the left's political tool to bypass the majority, after it lost its political power.
Zilber's decision proves things are only getting worse. This is not the way to serve the rule of law. This is the way to destroy it.