Is Ayelet Shaked planning to strangle the High Court?
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Analysis

Is Ayelet Shaked planning to strangle the High Court?

The furor over the identity of Netanyahu's incoming justice minister is obscuring one of the most important constitutional debates in Israel's history

Haviv Rettig Gur is The Times of Israel's senior analyst.

Ayelet Shaked in the Knesset, October 2014 (photo credit: Miriam Alster/Flash90)
Ayelet Shaked in the Knesset, October 2014 (photo credit: Miriam Alster/Flash90)

Former MK Amnon Rubinstein is everything that incoming justice minister Ayelet Shaked is not: a legal scholar; a man of the left; an advocate for separation from, and independence for, the Palestinians. As the Israel Prize-winning author of Israel’s two rights-granting basic laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Vocation, Rubinstein is also the closest thing Israel has to a constitutional founding father.

But it is Shaked, a right-wing activist with no legal training, a lawmaker with just two years’ experience but no shortage of opinions when it comes to reforming the legal system, who was sworn in as Israel’s new justice minister on Thursday night. And that fact has drawn a torrent of rancor and vituperation from the left in recent days.

Among the reforms Shaked is expected to pursue, three are pivotal to her political program and identity — splitting the attorney general post into two or even three different offices; giving the Knesset the power to overrule High Court of Justice decisions; and reducing the voting power of Supreme Court justices on the Judicial Appointments Committee.

Left-leaning media, politicians and even foreign governments have railed against or warned about such measures, which they claim would endanger Israel’s democracy.

In response, supporters on the right have charged that the Supreme Court is over-powerful and unrepresentative of Israeli society, that the attorney general and other elements of Israel’s legal system possess unchecked power that must be reined in.

It is in the context of this Manichean divide that the figure of Amnon Rubinstein can be a helpful signal that something important is missing from the debate. The law school dean and former Meretz cabinet minister has expressed views that don’t fit the neat battle lines of the culture war.

Speaking to this reporter in 2007 about the post of the attorney general, Rubinstein had this to say: “The problem is that the same person is head of the state prosecution and the government’s attorney. I don’t envy the attorney general, who must sit in cabinet meetings, offer his legal advice, and then prosecute the cabinet members. There has to be a division between these two functions.”

It isn’t just cabinet members who are disserved by this overlap between prosecutor and defense attorney. Israel’s attorney general is not subject to any meaningful oversight, Rubinstein fretted. Indictments do not have to receive the imprimatur of any American-style grand jury or British-style committing magistrate.

Elazar Stern, left, along with Amnon Rubinstein at a Supreme Court hearing regarding mandatory education (photo credit: Kobi Gideon/Flash 90)
Amnon Rubinstein (center right), with Elazar Stern (center left), at a Supreme Court hearing (Kobi Gideon/Flash90)

“We’re in a peculiar position in which the attorney general and his representatives can indict any person without judicial examination, and can interfere in proceedings already started, such as closing a case or plea-bargaining, without judicial intervention,” Rubinstein said.

Such scathing indictments of Israel’s highest law-enforcement post are not typically thought of as left-wing critiques. Indeed, when the right-wing advocacy group Movement for Governance and Democracy rails against what it calls the runaway powers of this institution, the criticism is brushed off by the mainstream elites as marginal, even extremist.

But Rubinstein’s example suggests this respectability gap is at least in part a function of culture, not substance.

Shaked’s two years in parliament suggest her term as justice minister will likely see more substance than noise — a fact that only adds to the sense of panic among her detractors

Indeed, the debate over judicial and legal reform more generally, both in parliament and the press, has been profoundly partisan. The High Court is either the opponent of the democratic processes of parliament, or the last bastion of democracy in the face of an aggressive, ascendant right-wing; the attorney general either an unelected, unchecked ideologue, or the nation’s last line of defense against a comprehensively corrupt political class.

As with so many issues in Israel’s wildly and at times debilitatingly contentious political culture, the substance of the debate is all but lost as the elites of left and right rail against each other with abandon.

And equally in keeping with tradition, one side’s narrative is accepted without challenge outside Israel’s borders. “The coalition agreements signed by the prime minister and his partners set a course that will likely undermine core pillars of Israel’s democracy, the independence of its Supreme Court, as well as efforts to better integrate the ultra-Orthodox into the workforce and into the army,” J Street president Jeremy Ben-Ami wrote to the group’s supporters on Wednesday.

Minister Shaked

Justice Minister Shaked has certainly earned no small measure of the concern over her appointment. Shaked herself spent the last few years as an activist and politician wading knee-deep in Israel’s political culture wars, often wielding uncompromising rhetoric similar to that with which she’s now being assailed.

MK Ayelet Shaked (Jewish Home) at the Knesset on November 10, 2014. (Photo credit: Hadas Parush/Flash90)
MK Ayelet Shaked (Jewish Home) in the Knesset on November 10, 2014 (Hadas Parush/Flash90)

Shaked’s two years in parliament have also taught observers a few things that suggest her term as justice minister will likely see more substance than noise — a fact that only adds to the sense of panic among her detractors.

For one thing, she’s smart. That’s not something one can assume of freshman lawmakers, but Shaked proved herself one of the most competent and formidable of the last Knesset’s parliamentarians. She took on issues she knew little to nothing about — the ultra-Orthodox draft bill she spearheaded is a good example — and soon became one of the Knesset’s recognized experts on them, a fledgling who quickly transformed into a key architect of some of the last Knesset’s most complex legislation.

Second, she’s blunt and decisive to the point of being cold and inaccessible, a personality trait that adds to her reputation in the halls of parliament as an unsentimental doer.

Shaked is not currently interviewing on these issues ahead of the swearing-in of the new cabinet, but there is a long record of her public statements and some appointments that together point to a clear direction for the new justice minister. These factors — the ferocity of the debate, the scale of the legal and judicial reforms Shaked supports, and her no-nonsense reputation — all suggest it is vitally important to understand the substance of her vision, a vision she appears to have every intention of attempting to implement.

Weakening the High Court

No reform has elicited more scathing criticism and fear than the right’s plans to weaken Israel’s Supreme Court.

There are two key issues surrounding the court that Shaked is likely to target for reform — the de facto veto power Supreme Court justices currently wield over the appointment of judges, and the Knesset’s inability to overturn Supreme Court decisions.

The first issue most distresses the right, who accuse the court of effectively representing only a narrow elitist clique within Israeli society.

Waiting for the High Court justices to arrive, December 4 (photo credit: Matti Friedman/Times of Israel)
Illustrative photo of waiting for High Court justices to arrive in the courtroom. (Matti Friedman/Times of Israel)

The Judicial Appointments Committee, chaired by the justice minister, currently has nine voting members — three Supreme Court justices, two members of the Israel Bar Association, two members of Knesset (one each from the opposition and coalition) and two cabinet ministers. Under rules passed in the Knesset in the mid-2000s, a majority of seven is required to appoint a judge, giving the three-member Supreme Court delegation a de facto veto over any appointment.

The justices, right-wing lawmakers note, have never split their votes in the committee.

The right prefers to focus on appointments because its case is straightforward: No other supreme court in the democratic world enjoys such veto power over the appointment of new justices. Shown Ben-Ami’s Wednesday statement, one right-wing Knesset official wondered if the American Jewish activist’s understanding of what the “independence of [Israel’s] Supreme Court” entails suggests he supports giving America’s Supreme Court a similar power to veto appointments.

The second issue — empowering the Knesset to overturn a Supreme Court decision — is the one that most worries the left.

Here the picture is more complex. In the United States, the Supreme Court’s word is final, as it is in Israel. It can be overturned only by the court itself or through the herculean effort of passing an amendment to the Constitution. In other democracies, however, parliaments are empowered to overrule or even simply ignore the court through the employment of special majorities or other measures.

There is precedent, in other words, for both a strong court and a weak one. But the right’s argument on this point hinges on what is special about the Israeli case: In democracies where the court is powerful, its reach — in legal terms, what is “justiciable” — is profoundly limited. In Israel, there is almost no limit to who or what can come before the court.

The Supreme Court building in Jerusalem. (Flash90)
The Supreme Court building in Jerusalem (Flash90)

The reason: Unlike the American Supreme Court, the Israeli counterpart is actually two distinct institutions, each staffed by the same 15 justices. It is both the Supreme Court, Israel’s highest appeals court, and the High Court of Justice, a British-style court of equity in which any citizen — or, indeed, non-citizen — can appeal against any state institution in real time.

Thus, while the American court handles a few dozen cases each year, the Israeli court hears several thousand. And while the American court tackles cases that have spent years winding their way up the judicial hierarchy, the Israeli court, wearing its High Court of Justice hat, hears daily appeals against government policies and actions — and often changes or reverses those policies at a single week’s notice.

Israel’s High Court of Justice has repeatedly changed the path of the West Bank security fence after Palestinian farmers and advocacy groups sued the army. It struck down government policies on African asylum seekers and the ultra-Orthodox draft. It even, in the famous case of the 2002 battle of Jenin, ordered the army to cease its advance into the city until it could hear complaints alleging that the army was violating the laws of war. The army, needless to say, froze in place while the court heard the arguments.

Those cases illustrate a great deal about the debate surrounding the High Court of Justice — both the reasons the left is so desperate to defend its powers, and the unprecedented sweep of the powers themselves, especially considering the court’s de facto control over its own appointments. Put simply, there is a great deal of truth to the right’s argument that what is essentially a self-appointing court wields powers that in other democracies lie squarely with the executive branch.

Thousands of asylum seekers from Eritrea and Sudan protest the Israeli government's neglect to review asylum requests, and the state's detention policies, at a demonstration held at Rabin Square, central Tel Aviv, January 05, 2013. (Tomer Neuberg/FLASH90)
Thousands of asylum seekers from Eritrea and Sudan protest the Israeli government’s neglect to review asylum requests, and the state’s detention policies, at a demonstration held at Rabin Square, central Tel Aviv, January 5, 2013. (Tomer Neuberg/Flash90)

They also clarify the trap into which the left risks falling. In explicitly supporting so powerful a court not for constitutional or legal reasons, but because its decisions more often than not overlap with the left’s political views, the left arguably bears part of the responsibility in creating the perception that the court has become a de facto political actor, and so is a legitimate target for political attack.

The most serious proposals currently on the table for curtailing the court’s powers are twofold: diluting the justices’ voting strength on the Judicial Appointments Committee, possibly by expanding the committee to 11 members with the two additional votes coming from the Knesset or cabinet; and granting the Knesset the right to pass laws that overturn High Court of Justice rulings.

It is this second proposal that has raised the ire of the left, and of the world. But the criticism is not limited to opposition members and foreigners. Likud stalwarts such as President Reuven Rivlin, Defense Minister Moshe Ya’alon, former ministers Benny Begin and Dan Meridor, and others have gone on the record over the years expressing reservations over such a move. Indeed, Prime Minister Benjamin Netanyahu, while largely avoiding wading publicly into the battles over the judiciary, has ordered similar bills quashed in past Knessets.

There is something galling, the left says, in allowing a straightforward Knesset majority the constitutional power to suspend Israeli citizens’ right to, for example, life

The bill currently being championed on the right focuses not on stripping the court of its powers, but on granting the Knesset new ones. The Basic Law: Freedom of Vocation is the basic guarantor of individual economic rights, granting Israelis “the right to engage in any vocation, profession or trade,” and delineates specific conditions under which this right may be abridged.

But Article 8(a) of the Basic Law allows for the temporary suspension of this right under three conditions — that any law violating this right pass in the Knesset with a majority of 61 MKs; that it explicitly state in the law that it is in violation of the Basic Law: Freedom of Vocation; and that the law expire after four years.

In other words, the Basic Law ensuring economic freedom can be suspended by a parliamentary majority — but the suspension must be renewed by successive Knessets.

The Supreme Court in session. (Yossi Zamir/Flash90)
The Supreme Court in session (Yossi Zamir/Flash90)

The right-wing reform likely to be taken up by Shaked seeks to place a more or less identical article into the Basic Law: Human Dignity and Liberty. It is this law which contains the language on which the High Court of Justice relies in its rulings, so that allowing the Knesset to violate the law with a majority vote would effectively grant it the right to overturn High Court rulings against government actions.

It is, in effect, a strategy of limiting the court’s power by granting the Knesset the power to suspend rights guaranteed in the Basic Law.

Critics — and there are many — point to the moral difference between the two Basic Laws. Abridging one’s right to work is not the same, many argue, as abridging the rights guaranteed by Human Dignity and Liberty, including the rights to life, property, privacy, freedom of movement and the more amorphous but no less compelling right to “dignity.”

On this point it is the left that has taken up the principled argument. There is something galling, the left says, in allowing a straightforward Knesset majority the constitutional power to suspend Israeli citizens’ right to, for example, life.

While the public debate has often been hopelessly belligerent, with the right railing against the court’s supposed descent into partisan interventionism and the left’s rhetoric sharpened by the frustrations of political powerlessness, the discussions within parliament have been more substantive.

Sources close to Shaked openly acknowledge that the question of subjecting Israel’s most sacred basic law to the brutalities of political wrangling is a delicate one. One proposal currently being bandied about on the right suggests that the majority required to overturn a High Court ruling be raised as high as 70 MKs — in other words, that a more significant majority be required to counter the court — but that the court’s original ability to strike down legislation also be curtailed by requiring a two-thirds majority of the full court.

That is, instead of the current situation in which a single justice can hear a case in a single day and issue a ruling overturning a major government policy, such dramatic powers would only be granted to 10 justices sitting in a 15-justice quorum.

If the court’s powers to overrule the Knesset were thus checked, these sources suggest, the Knesset would limit its own sought-after powers to overturn the court — assuming, of course, that the judicial appointments process is reformed to allow for a more diverse group of judges in that 15-member quorum.

The schizophrenic attorney general

The battle over the attorney general’s post is less visceral, but otherwise bears striking similarities to the Supreme Court debate. The institution’s unchecked power is undeniable, while the rival campaigns to limit or preserve that power are just as partisan.

It is undeniable that the state’s defense attorneys quite literally work for the state prosecution, that the chief state prosecutor is literally the boss of the person who will stand against him or her in the most high-profile cases on the legal system’s docket. And both posts, needless to say, are subject to the decisions of the same post: the attorney general.

Attorney General Yehuda Weinstein attends the weekly cabinet meeting in Jerusalem, November 23, 2014. (Ohad Zwigenberg/Flash90, Pool)
Attorney General Yehuda Weinstein attends the weekly cabinet meeting in Jerusalem, November 23, 2014. (Ohad Zwigenberg/Flash90, Pool)

It is similarly undeniable that the attorney general post is trapped in a kind of schizophrenia, serving at once as the cabinet’s legal adviser and the official who will indict its members. Cabinet members facing corruption investigations pointedly avoid criticizing the current system, but that fact only highlights the problem: that the attorney general’s office oversees both their defense, and is the lead prosecuting agency they need to be defended from.

A constitutional moment?

The political philosopher and former MK and education minister Yuli Tamir has offered a more subtle warning about the current Israeli constitutional debate.

Tamir’s sympathies are obvious. She was one of the founders of Peace Now in the late 1970s and served in three Knessets as a Labor MK. But her concern is not simply that the right might win this fight, but that the Israeli political class generally is not honestly engaged in what amounts to a fundamental constitutional debate.

“Constitutional moments” — moments when political elites are able to detach from the demands of immediate partisan politics and consider the long-term good, the welfare of minorities and the limits that should be placed on their own power — “are rare,” Tamir said on a recent panel in Jerusalem.

Yuli Tamir. (Moshe Shai/FLASH90)
Yuli Tamir (Moshe Shai/Flash90)

“We’re not in such a constitutional moment.”

Ultimately, the shallowness of the debate may be its most worrying element.

It is no accident that Israel’s judiciary and law-enforcement officials have grown so powerful; in a Jewish political culture, it would be strange if the arbiters of the law, the traditional role of venerated rabbis throughout Jewish history, did not hold such pride of place.

As even Ayelet Shaked noted on Wednesday in a meeting with Romania’s Justice Minister Robert Cazanciuc, in her first public comments since the announcement of her appointment as justice minister: “We are proud of our Supreme Court. It is among the world’s leading high courts and its justices are outstanding.”

As the right seeks to rein in what is arguably the most powerful high court in the free world, even at the cost of weakening the law that serves as Israel’s “Bill of Rights,” and the left springs to defend the court’s unchecked power on essentially partisan grounds, one might be forgiven for concluding with Tamir that, whatever the outcome, this debate is not the constitutional moment that Israel deserves.

The challenge for Shaked, and perhaps the defining question of her legacy, will be how she navigates that debate, reins in the court but not the rights it enforces, empowers the Knesset without tearing down the judiciary’s role as protector of minority rights, and above all, abandons the rhetorical partisanship with which she rose to power in favor of a more responsible sensibility that acknowledges the sanctity and delicacy of her new charge.

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