Ex-justice Rubinstein warns government plans will create ‘democratic dictatorship’
Former Supreme Court deputy president tells Times of Israel radical legal shakeup would leave Israel with just one branch of government – and potentially a ‘democracy in name’ only
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Former deputy Supreme Court Justice president Elyakim Rubinstein warned that a controversial package of sweeping legal reforms proposed by Justice Minister Yariv Levin would leave Israel with just one branch of government, the executive, and hollow out Israeli democracy, joining a growing outcry against the planned overhaul.
Speaking to The Times of Israel, Rubinstein said he understood the desire to formalize the authority of the High Court of Justice through a Basic Law for legislation, but said he disagreed with almost all the proposals for such a measure being advanced by Levin and the new government.
Last week, Levin introduced a program of four radical changes that would severely restrict the High Court’s capacity to strike down laws and government decisions; enact an “override clause” enabling the Knesset to re-legislate such laws; give the government complete control over the selection of judges; prevent the court from using a test of “reasonableness” against which to evaluate government decisions; and allow ministers to appoint their own legal advisers, instead of getting counsel from advisers operating under the authority of the Justice Ministry.
Despite the radical nature of the proposals, the former High Court justice said he disagreed with former Supreme Court president Aharon Barak, who said recently he believed the justices of the current court should resign if the reforms were adopted. Rubinstein said such a step would be too drastic.
Levin and several coalition party leaders and ministers have argued that the changes are necessary to enable the government to enact its policies and those of the voters it represents without judicial intervention from unelected courts.
Critics, including Rubinstein, have countered that the proposals go too far and will remove all checks on executive power.
“There is a principle of checks and balances [on government power] and a concept of [executive] restraint that governments sometimes do not follow for different reasons, resulting in minorities and weaker sectors of society who are in need of help,” the former justice said. “If there is only one branch of government instead of three, then it will be a democracy in name, but will it be a democracy in the substantive understanding of the idea?”
Before serving on the Supreme Court from 2004 to 2017, Rubinstein served as attorney general from 1997 to 2003, as cabinet secretary during the governments of Yitzhak Shamir and Yitzhak Rabin, and as legal adviser to the defense and foreign ministries, and was also a Jerusalem District Court judge.
‘Unnecessary’ changes to a court in good standing
Rubenstein, who was considered one of the more moderate voices on the bench, said he was “opposed to almost all” of Levin’s proposals. “They are unnecessary and change the entire system of government to a certain extent,” he said.
“This does not mean to say that the court cannot be criticized and that there are never any mistakes. Any human creation can make mistakes, but it’s very easy to destroy and very hard to build,” he opined.
Asked if, like Barak, he believed the current justices of the Supreme Court should resign if Levin’s drastic reforms are adopted, Rubinstein argued that such a step would be too extreme.
“I don’t like radical steps. They ought to make their opinion clear, but resigning means desperation, and we shouldn’t come to that,” he said. He noted, though, that his distress over the matter was causing him to lose sleep.
Speaking in general terms, the former jurist said the good standing of the court has insulated Israel from legal attack in international courts, such as Hague-based war crimes tribunals.
And he noted that the court has also been an important factor in preserving Israel’s ties with the Jewish Diaspora, noting the several instances it has intervened regarding their interests.
Both these advantages would be threatened by the adoption of the government’s judicial and legal overhaul.
The right and necessity of court intervention
Addressing Levin’s arguments in favor of the suggested reforms, he challenged the justice minister’s assertion that the High Court has no authority to strike down Knesset legislation.
Rubinstein pointed out that Basic Law: Human Dignity and Liberty states explicitly that the rights it lays out can only be abrogated through another law that is “commensurate with the values of the State of Israel,” that is designed for an “appropriate purpose,” and if the damage the law does to such rights is proportional to the objective it seeks to obtain.
The law, adopted in 1992, has constituted the basis for the High Court’s decision to annul laws in a large majority of the 22 instances in which it has done so.
“It is the court that needs to interpret this concept and serve as a moderating factor,” insisted Rubinstein.
He said that anchoring this authority in a Basic Law for legislation is desirable, but not in the manner that Levin has proposed.
The justice minister’s planned changes include the adoption of a Basic Law: Legislation, which would for the first time stipulate in law that the High Court is entitled to strike down legislation, but at the same time would greatly limit the circumstances in which that can happen.
Levin said when announcing his proposals that the court would only be able to strike down legislation with a panel of all 15 justices and a special majority of that panel, reportedly to be set at 12 justices.
Rubinstein said such issues could be discussed within the framework of a Basic Law, but the conditions for striking down legislation set out by Levin “needs greater flexibility,” adding that the High Court almost always has an expanded panel of nine or 11 justices when deliberating Knesset laws.
High Court override ‘brainwashing’
As to a High Court override clause, Rubinstein said he is adamantly opposed, especially given the low bar suggested for overriding a court decision — set at just 61 MKs, which every majority government has.
He described the proposal as unnecessary in light of the fact that the court has struck down just 22 pieces of legislation, or clauses within legislation, out of approximately 470 petitions requesting such a step in the 27 years since the landmark Bank Mizrahi case of 1995, which established the precedent of judicial review over legislation.
And the former High Court justice dismissed arguments justifying the override law based on the fact that Canada’s system of government includes a High Court override clause, pointing out that it has never been used by the federal government in that country.
Critics of an Israeli High Court override have also noted that Canada has a constitution guaranteeing civil rights, as well as other constitutional checks on executive power that mitigate the effect of the override mechanism there.
“The majority of the democratic world does not have a High Court override law. There has been brainwashing here on this issue. There is no need for an override, bearing in mind the few laws that have been subjected to judicial review here,” argued Rubinstein.
“Having an override law with 61 MKs means that there is only one branch of government — which is the government itself, since the Knesset is controlled by the government,” he declared.
Minority rights matter
Asked why the elected coalition of the day, having won a majority in Knesset through free and fair elections, should not be able to have the last say on the laws of the land, Rubinstein contended that the High Court was nevertheless needed to ensure that the rights of minorities and “the weak” are not trampled upon by that majority.
“Minorities also have rights in democracies, and in general there is such a thing as human rights. If you go only by what the coalition of the day says, we will not feel good in this country regarding the protection of those human rights,” he said.
“You truly need appropriate checks and balances to avoid a democratic dictatorship.”
Rubinstein pointed to one case in which he was one of the presiding judges where the court insisted that the small Jewish Karaite community, numbering just 40,000 people, be allowed to maintain its use of a slaughterhouse in order to guarantee the sect’s access to ritually slaughtered meat.
The court secured an agreement with the Chief Rabbinate, which had sought to prevent the use of the slaughterhouse by the sect — which rejects rabbinic Judaism — thus ensuring freedom of religion for a group despite its diminutive presence.
He also cited another case in which a section of a law governing the allocation of a welfare benefit made anyone who owned a car ineligible for that government stipend, which was annulled by the High Court.
“What if there was a situation in which a single working mom or divorcee with several children owns an old car, which she needs to travel from work to pick up the children? Because she owns this old car she should not be granted this stipend?” Rubinstein demanded.
Asked if eligibility for a government welfare stipend was really the kind of fundamental right that the court should deal with, Rubinstein said simply, “For that single mother, it is very fundamental.”
The politics of judicial intervention
Critics of the court have argued, however, that it has had a decidedly liberal slant and that its interventions, or lack thereof, are often based on the political perspective of the justices.
One example offered is the decision by the High Court not to annul the legislation passed by the Ariel Sharon government in 2005 that enacted the withdrawal from the Gaza Strip and the evacuation of some 8,000 settlers from the region.
The settlers argued that their human rights, including their property rights, were being violated by the government. The court acknowledged in its ruling that their rights were being infringed, but decided that this was proportional in relation to the intended goal of the Disengagement program.
Rubinstein, who was not on the panel that decided the case, pointed out that the court did later intervene to increase the compensation to be received by the residents of the Gush Katif settlements in Gaza.
“The court ruled that the most dominant issue here was political, not legal,” continued Rubinstein.
“The approach is, and has always been, that when there is a political issue the court is not inclined to intervene,” he said, although he expressed reservations about the ruling and said he was not sure he would have ruled with the majority of the panel “because I wasn’t sure that the government saw all the consequences, and what the intelligence outlook was for the future that this measure would bring about.”
The High Court has, however, involved itself in other issues of a highly political nature, including the 2020 decision to annul the Settlements Regulation law, which retroactively legalized settlements built on private Palestinian land.
Asked whether the court should not have required of itself similar caution to that it displayed in the Gaza Disengagement decision, Rubinstein asserted that some cases include heavy legal as well as political concerns, and that the court — when making such decisions — has to balance those considerations.
“The word political is examined in every instance. These are issues in which human rights are always bound up, and then you ask how you relate to them,” he said.
Another crucial aspect of Levin’s shakeup of the judiciary is the intention to give the government complete control over the Judicial Selection Committee by increasing the panel to 11 members, seven of whom would be chosen by the government. The panel is tasked with nominating new Supreme Court justices and other judicial appointments.
“This selection system has been in place for 70 years and has brought about a quality judiciary with a good reputation around the world. The committee is balanced and is not political. What the government wants right now is clear political control of the committee,” he declared.
“I don’t like to talk in apocalyptic terms, but these [changes] would do very great damage,” Rubinstein said.
