Fifteen months ago, with the investigations into Prime Minister Benjamin Netanyahu’s alleged criminal misdeeds in full swing, I interviewed the former Netanyahu-era attorney general Elyakim Rubinstein across a desk overloaded with paperwork in his office at the Supreme Court in Jerusalem.
The focus of the conversation that day was on one of his successors, the incumbent Attorney General Avichai Mandeblit, and especially, although I didn’t put my questions this bluntly, whether Mandelblit would have the guts and integrity to press charges against the prime minister if necessary. Rubinstein, for his part, would never have answered questions posed that personally and crudely, but he did make clear his confidence in Mandelblit and his certainty that the man in the hottest of legal hot seats would follow the evidence wherever it led and act upon that evidence as appropriate.
A year later, on February 28, 2019, that evidence led Mandelblit to issue a highly detailed draft charge sheet against our prime minister of the past decade, accusing Netanyahu of grossly abusing his office to advance his personal interests and undermine those of the state, and warning Netanyahu that he would be charging him with fraud and breach of trust in three cases and bribery in one of them, unless the prime minister could persuade him of his innocence in a hearing that was recently scheduled for early October. (In the bribery case, Case 4000, it is alleged that Netanyahu sweetened business conditions — and stalled the vital upgrade of Israel’s internet infrastructure — to the tune of hundreds of millions of dollars for telecom tycoon Shaul Elovitch, in return for Elovitch effectively enabling Netanyahu to serve as editor in chief of the Walla website, Israel’s second largest online news outlet, and shape its coverage to his liking.)
This week, I reached out to Rubinstein again — not, this time, to discuss the wisdom and experience gained in his attorney general years (1997-2004, during which he too investigated Netanyahu), but rather, his subsequent career as a justice on the Supreme Court (from 2004 until his mandatory retirement, as deputy president of the court, aged 70, in 2017). For matters legal and judicial have now moved on dramatically. Having failed to deter Mandelblit from publishing his intended charges, the prime minister has now apparently turned his attention to seeking to evade prosecution — via a one-two process of winning immunity from prosecution, and then canceling the Supreme Court’s Knesset-legislated authority to overturn it.
They’ve invented a kind of demon that asserts that the High Court is intervening in democracy
Somewhat circumspect, as is his way, Rubinstein in our conversation (by telephone) this week unsurprisingly declined to speculate on how the Netanyahu-judicial standoff is likely to play out. One of his most esteemed and controversial predecessors, the former Supreme Court president Aharon Barak, said in an interview excerpt broadcast on Thursday that if he were still in office, he would consider quitting were MKs to legislate, as several in the incoming coalition have publicly said is their intention, the termination of the court’s right to overturn laws and decisions it deems unconstitutional. What would be the point of staying on, Barak wailed in the Channel 13 interview. “The key task of the Supreme Court is to protect the democracy, to protect the constitution,” he observed. “It can’t protect the democracy and can’t protect the constitution if it doesn’t have the tools to do so.” Rubinstein, by contrast, would not be drawn on how today’s Supreme Court justices would or should respond to the judicial ground being cut out from beneath their feet.
But perhaps precisely because Rubinstein is generally circumspect and diplomatic — another part of his career was spent as a diplomat, helping to negotiate the peace treaty with Egypt, leading Israel’s talks with the Jordanian-Palestinian delegation created after the 1991 Madrid peace conference, and heading the negotiations that yielded the 1994 peace treaty with Jordan — his warnings in our interview about the dangers that now loom in the neutering of the Supreme Court seem especially resonant. Several times I asked him whether the kind of “override” legislation that some in the incoming coalition are bragging will condemn Israel’s highest court to irrelevancy would, if passed, constitute the end of Israel as a democracy. And each time he chose not to answer the question with those exact words. “I am not the type of person to make all kinds of extreme statements. And I am in no rush to eulogize our democracy,” he said at one point.
And yet Rubinstein felt obligated to declare that, were the prime minister, by means of the mooted immunity and override two-step, indeed to place himself above the law, this would “most certainly” weaken and harm our democracy. In fact, Rubinstein went further: Were the prime minister “to escape being put on trial, either via new legislation, or with the support of the Knesset under the current legislation,” he said, “this really makes us… not a civilized country.”
What follows is a lightly edited transcript of our interview, which was conducted in Hebrew.
The Times of Israel: When we met last time, we spoke about whether the attorney general would do what his job requires of him. Now we are in a completely different situation. There is a lot of focus on the Immunity Law, but gaining immunity from prosecution under the current or an amended version of the law is not enough to protect the prime minister if the High Court strikes that immunity down. So, I want to understand what is happening here, as far as you are concerned, regarding the threat to the balance between the Knesset and the courts. Why is this talk of legislation to “override” the powers of the Supreme Court dangerous? How do you view the situation?
Elyakim Rubinstein: It seems to me that the entire period at present is characterized by a kind of attack on the legal system – on the courts and also on the attorney general. Many messages being put out are portraying the courts as the enemy of the people. For example, with the appointment of the next State Comptroller, the message is that anyone can be appointed, so long as he is not a judge. What is wrong with having a judge? For the past 30 years, there were judges in this position who did a good job. A judge who has the background and the ability to do the work, to be objective, to have an overall view of a situation from all aspects, but he should not be considered just because he is a judge?! What kind of message is that?
As for the “override clause,” there is no need for it. They’ve invented a kind of demon that asserts that the High Court is intervening in democracy. The statistics I’ve seen show that between 1992 — when the Basic Law: Human Dignity and Liberty was passed, and what is called the “judicial revolution” occurred — and 2017, there were some 450 petitions [to the High Court regarding legislation]. Eighteen were accepted. This is the lowest percentage in the Western world, according to all available comparative data.
The court is very cautious in this matter. To accuse it of intervening in democracy, well, as my late grandmother would say in Yiddish, “it never was; it never happened.”
By the way: the “judicial revolution” was instituted by the Knesset, and not by [former Supreme Court presidents] Aharon Barak, Meir Shamgar or the High Court. Just read the Basic Law: Human Dignity and Liberty, and it’s clear that the High Court has legislative power. The MKs were the ones who entrusted this power to the court.
Secondly, if the goal of all of this is to grant immunity [from prosecution for the prime minister], well, listen, I am not a hater of Benjamin Netanyahu. I think he is a very talented man and has done very many important things. But the thought that in order for him to escape being put on trial — either via new legislation, or with the support of the Knesset under the current legislation: This really makes us a third world country, not a civilized country. And that is very worrying, of course.
Let me play devil’s advocate. If I am an ordinary citizen, why should I care? I elected the Knesset members, the government. Isn’t it right that they should decide on these matters? How does the High Court, with its present powers, protect the ordinary citizen, and why not deprive the judges of these rights?
How do the courts protect the average citizen?! Very simple. As far as petitions to the High Court are concerned, an important part of the court’s role is to defend weaker sections of society, to defend human and civil rights, to defend minorities – all kinds of minorities. To protect the rights of women. To ensure that budgets are fairly distributed, that appointments [to positions] should not be illegal, to ensure that state land is not distributed in a corrupt and arbitrary way, and many other issues.
Of course, there are controversial issues that have to be discussed — such as the issue of religion and state. There is no public consensus, and there are a lot of different views on these issues.
I am not a hater of Benjamin Netanyahu. I think he is a very talented man and has done very many important things. But the thought that in order for him to escape being put on trial — either via new legislation, or with the support of the Knesset under the current legislation: This really makes us a third world country, not a civilized country
But in general, the High Court, sitting as the Supreme Court, protects weaker sectors of society.
When it comes to legislation, it is written in the Basic Law: Human Dignity and Liberty that a person’s rights can only be undermined if there is an appropriate imperative that conforms to the core values of the State of Israel. Who makes that determination? The Supreme Court. There is no one else who can do so. The core values of the State of Israel have not been written down, so the courts have to determine such matters, based on what was written in the Declaration of Independence and other sources.
What I am trying to say is that if we curb the power of the courts, then what will be damaged is the issue of human rights.
Can I not rely on my government to responsibly handle these issues?
This is why the model of checks and balances was created. The law states that under certain conditions, if a person claims that his rights have been harmed, then the courts will examine this and determine if this is justified, as I said, according to the core values of the State of Israel.
The purpose of these checks and balances between the different hierarchies [the legislature, the executive and the judiciary] is to ensure that there is no one authority that has absolute power. We live in a system where democracy is maintained by these checks and balances. We in the State of Israel didn’t invent this; it exists in many countries. And now they want to curb the power of the courts. It’s simply terrible.
Among the 18 laws in which the Supreme Court did intervene, are there one or two examples you can mention that highlight why it is so vital that the court retain this authority?
I’ll give you a recent example, where [the court intervened] on the issue of privatized prisons, to ensure that prisoners would remain the responsibility of the state. Another issue is the Sisyphean struggle regarding the equal sharing of the burden of mandatory IDF service — that ultra-Orthodox men should also enlist. [The Supreme Court has struck down laws that have provided for wide-ranging exemptions from military service in the ultra-Orthodox sector]. Some of these [interventions] were not regarding Knesset laws but, rather, government decisions, such as, again with prisoners, how much space they should be allocated. Questions of National Insurance: Who is eligible? If someone owns a car — he is poor, but he needs a car for his work — is that a reason to take away his eligibility for national insurance benefits? There are all kinds of matters pertaining to an individual and his rights.
But I’ve still not given you the full picture. The full picture of the Supreme Court is not only about [its oversight of] Knesset laws. The bulk of its work relates to government decisions. There are many decisions that the Supreme Court helped with. For example, on issues of gender – that a woman can be a pilot, or the director of a rabbinical court. Or take the rights of minorities — concerning budgetary allocations. Then of course there are issues concerning the Palestinians — the court did not intervene regarding settlements built on state land, but it did intervene when settlements were built on privately owned land.
If the High Court’s authority in such areas — its right to oversight and to intervene in legislation, government decisions and Knesset decisions — is stripped away, is Israel no longer a democratic country?
You have to look at the accumulation, at where things are headed. I said earlier that there is no need for the “override clause.” I am against it. But if there are those who really think it is vital, and who advanced a law that required the support of 75-80 [of the 120 Knesset members] in order to re-legislate legislation that the Supreme Court had struck down, then I would say, Let it be. That would mean coalition and opposition MKs were included. But if the Knesset instead requires only a simple majority, where the coalition alone pushes it through [that would not be acceptable].
In the entire democratic world, only in Canada do they have an override clause, and the Federal court has never used it. Not once. The provincial courts have used it on a few occasions. In other words, nowhere in the [democratic] world does it exist [in the way it is being envisaged here].
Also, think about the mentality of the State of Israel. Just think about what will happen if we were to have the “override clause.” Every few weeks we would have a Supreme Court ruling that someone didn’t like. Immediately in the Knesset, someone would submit a bill to override the ruling. Instead of taking care of the health system, security, the economy, welfare — no! We’d be busy with the court. I ask you, don’t you think that’s what would happen here in the Israeli reality?
So, again, how to define our country if this is what happens?
It is an accumulation of issues: If this happens, and if they do that [then we’ll draw conclusions]. Netanyahu is innocent until proven guilty, and he has a hearing [before he can be indicted]. But if after all that, there is an indictment, and it includes bribery, and the Knesset dissolves all this through [granting him] immunity, then this is the third world.
And if the Knesset “dissolves all this” and then prevents the Supreme Court from intervening…
I don’t know what exactly they are planning, but if it reaches the point that [the Supreme Court] cannot intervene… They speak about the “French Law,” where while [the president] holds office [he is immune from prosecution], but in France the term of [presidential] office is limited [to 10 years]. Here there are no term limits [for the prime minister]. If the person continues, and continues, and continues in office [and avoids prosecution], then the whole thing becomes a bad joke.
And is thus above the law and we can no longer call our country a democratic country? I’m sorry to push you on this, but it’s important to make clear what’s at stake.
I am not the type of person to make all kinds of extreme statements. And I am in no rush to eulogize our democracy. But to say that it weakens our democracy, harms our democracy? Most certainly!
If the Knesset does grant Netanyahu immunity, would the Supreme Court intervene?
I don’t want to speculate.
What of his claim that he received a mandate and support from the people in the April 9 elections, and that it is therefore preferable, democratically, that he fulfill the will of the people, and run the country, and then take care of his legal affairs afterwards, when he is no longer in office?
We have to make a clear distinction between the legal aspect and the political aspect. With the greatest of respect to Netanyahu and the elections, if we mix the [legal aspect] with the political aspect, then we are not in a good place. Not at all.
What will the Supreme Court justices themselves do if the Knesset legislates the override clause, if MKs curb the court’s powers? What will they do? What will actually happen? Presumably, someone will petition the Supreme Court to strike down the legislation that neuters the Supreme Court! And then what?
I already told you that I will not speculate on what the Supreme Court will decide on any issue.
I understand, but nevertheless…
Don’t waste your time, I am not going to answer.
Then help me formulate a question that you will be able to answer, because I want to understand how it would play out. Would the judges resign? Go on strike?
God forbid, if we reach that bridge, we’ll work out how to cross it. I am not going to make jokes now because it is too serious an issue. But Henry Kissinger used to say: When we reach the bridge, we will double cross it.
I appreciate your answer. Nevertheless, I am still asking you for your knowledge. Do you know of any precedent in other countries that we can learn from, in which these things happened?
I can’t cite concrete examples from other countries. But look at what is happening in Eastern Europe — how nationalism, for various reasons, is limiting the powers of the courts. You know which countries I am talking about.
We do not want to be like those countries in the world who want their courts [neutered]. We are not there, and I hope that we will not reach that point. But the signs are worrying
President Roosevelt tried to “pack the courts” because he had problems with a conservative court concerning his New Deal legislation, but in the end he also backed off.
We do not want to be like those countries in the world who want their courts [neutered]. We are not there, and I hope that we will not reach that point.
But the signs are worrying. Listen to the way some of the candidates for the position of justice minister have been talking. I heard one of them say, loud and clear on the radio, that the High Court is “impudent.” Another one said: “I will clean out the stables.” He was talking about the Justice Ministry! What stables is he talking about? The Attorney General’s Office is a stable?! The State Prosecution is a stable?!
All these authorities — the courts, the Attorney General’s Office, the State Prosecution – they can all make mistakes. I have worked in all these places. The best proof that there can be different opinions is that there are many cases in the High Court itself in which there are majority and minority opinions among the justices. Plainly, the minority thinks that the majority is wrong. But that an MK from one of the parties that wants to hold the justice portfolio can say that “D9 bulldozers should be used to raze the Supreme Court”? That he can make the (Hebrew) pun that the Supreme Court is not the “backbone” of the state but the “massacring bone” of the state? And why? Because the court issued an interim order halting the demolition of houses. When there is petition against demolishing houses, you cannot deal with it without an interim order to freeze the demolition. You can’t first demolish the houses and then listen to the petition.
The people who care deeply about preserving the current checks and balances that maintain Israeli democracy, what should they do now?
There are a lot of things to be done. I also am prepared to participate in activity that can make a difference. Leading lawyers, academics, and various retired judges are speaking out, stating their opposition — this is a large group of people who have something to say on this matter.
I also hope that in the Knesset, there will be MKs who understand and are willing to listen, and that this will have an impact. However, I cannot foresee what will happen. I am not part of the political system.
What is the mood now among Supreme Court justices?
I don’t discuss this with them.
Since we are already talking, I am part of a group of several professors and a Druze brigadier general who are trying to promote an amendment and correction to the Nation State law, without, obviously, damaging in any way at all the main point of the law, which we support — that Israel is the national home of the Jewish people — but to add an extra clause referring to equality for non-Jewish citizens.
We believe, not in legal terms — because there are petitions pending to the Supreme Court — but from a point of being fair and showing partnership with non-Jewish citizens, that an amendment that will state clearly that there is equality, that the state is a home for all its citizens, is necessary. It is not only me who thinks so. It is the whole group. I feel it is important to mention this.
And finally, having said everything that I’ve said, I want to add two things.
First: The Israeli judiciary and in particular the Supreme Court are a strategic asset of Israel, well recognized abroad, and should remain such.
And second: Israel is a great country, a great state, the dream of millennia of exile and persecution. It has superb achievements, thank God, including peace treaties with Egypt and Jordan, in which I am proud to have participated. We should work to continue this beautiful enterprise.