Justice minister, chief justice and A-G clash publicly over court authority
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Justice minister, chief justice and A-G clash publicly over court authority

At conference, Shaked says judiciary is disconnected from reality, fears will of the people; Mandelblit: Curbing court's powers will 'cause significant harm to Israeli democracy'

Justice Minister Ayelet Shaked attends a swearing in ceremony for newly appointed judges at the President's Residence in Jerusalem, October 30, 2017. (Yonatan Sindel/Flash90)
Justice Minister Ayelet Shaked attends a swearing in ceremony for newly appointed judges at the President's Residence in Jerusalem, October 30, 2017. (Yonatan Sindel/Flash90)

Justice Minister Ayelet Shaked lashed out at the Supreme Court on Thursday, as her Jewish Home party advances a bill to curb its authority, characterizing its occupants as disconnected from reality and fearing the will of the people.

For his part, Attorney General Avichai Mandelblit warned that the bill would “cause significant harm to Israeli democracy,” while Supreme Court Chief Justice Esther Hayut criticized “shameful” statements against the courts by politicians.

Speaking at a conference of the Israeli Association of Public Law in Zichron Yaakov, Shaked said that by often challenging the Knesset and its legislation, Israel’s judiciary was “fleeing the people” and their choices.

“This comes from a deep-seated fear of the people and a disconnect between some of the old elite from the realities of life,” Shaked said, as well as “a preference for the pure judicial norm over concrete reality — a reality that will always be more difficult than any judicial wordplay.

Referring to the original Greek meaning of ‘democracy’ — ‘Demos’ meaning ‘people’ and ‘Kratos’ meaning ‘rule’ — Shaked claimed “The ‘demos’ has become a demon, and the people have become a threat lurking around every corner, and threatening the method.

“The decisions of the demos…are (seen as) driven by emotions rather than rationale, by urges rather than positions. And so the people’s laws, as legislated by their representatives, are often seen as potentially bringing on disaster.”

Shaked and her party leader Naftali Bennett earlier this week published their draft for a bill that would curb the authority of the High Court of Justice and the Supreme Court in striking down Knesset legislation.

The newly unveiled draft would prevent the courts from disqualifying any quasi-constitutional Basic Laws — passed with the support of at least 61 of the 120 lawmakers in each of its three plenary readings.

The draft legislation says the court will only be able to strike down any other laws with a special panel of nine presiding justices, and only if two-thirds of the justices supported the move.

Hayut, responding to Shaked at the conference, criticized “shameful” statements made against the courts and their rulings by some politicians who disagreed with them.

Supreme Court Chief Justice Esther Hayut speaks during a ceremony in honor of her predecessor’s retirement in Jerusalem on October 26, 2017.. (Yonatan Sindel/Flash90)

Respectful dialogue between the branches of government, she said, “is essential in a democratic state…sadly the manner in which some lawmakers and ministers have spoken of the judicial branch has been far from respectful.”

Hayut denounced “calls by some representatives of the public not to accept rulings (of the judicial branch), and there are those in the public who hear this and internalize it.”

She said it was often legislators who “avoid making decisions and push the baton to the Supreme Court to ‘handle the hot potato.’ This repeats itself time after time,” she said. “After the court makes a decision, which is not always to their liking, they cry out about a loss of governability.”

Hayut was supported by Mandelblit who, also speaking at the event, defended the court’s independence and spoke out against the Jewish Home bill, which he said would “cause significant harm to Israeli democracy” and misunderstood the meaning of majority rule.

“It seems to me there are those who feel any decision made by a majority in the Knesset is necessarily legitimate. They are usually of this opinion when they are in the majority,” he noted. “This assumption ignores the fact that sometimes the majority may make a decision that harms the minority. In such cases the only body that can protect the minority from the tyranny of the majority is the court.”

Attorney General Avichai Mandelblit speaks during the farewell ceremony for Supreme Court President Miriam Naor in Jerusalem on October 26, 2017. (Yonatan Sindel/Flash90)

Mandelblit said the bill preventing the Supreme Court from striking down certain laws “dismantles the High Court’s authority to defend minorities. It makes it exceedingly difficult for the court to serve as an effective judicial auditor.

“Some believe wrongly that democracy is only a system of election, and that the judiciary should only enable those who win a majority to do as they please,” he said. “In that spirit, one Knesset member said recently, after a court ruling rejected the state’s position, that ‘the government must decide whether to continue carrying out the rulings of the High Court.’ Ladies and gentlemen that is not democracy, but a danger to democracy.”

Though Jewish Home has long complained of court interference in the government’s ability to govern, Bennett said that the immediate catalyst for submitting the draft legislation now was a recent Supreme Court ruling that the bodies of Palestinians killed carrying out terror attacks must be released for burial and may not be used as bargaining chips.

A government statement on Monday said members of the high-level security cabinet decided the ruling by Israel’s highest court was “unacceptable” and asked it to hold a fresh hearing on the issue.

The proposal follows a series of High Court rulings that unraveled existing Knesset legislation, including its revised IDF ultra-Orthodox enlistment bill, its policies on detaining African migrants, the two-year budget, a plan by the finance minister for third-apartment taxation, and the revocation of permanent residency status of four Palestinian parliamentarians from East Jerusalem with ties to the Hamas terror group a decade ago.

The Supreme Court has frequently irked right-wing and Orthodox politicians with an interventionist ethos pioneered by Aharon Barak, court president from 1995 to 2006.

Barak expanded the range of issues the court dealt with, viewing both the need to protect individual rights against other arms of the law, and to keep a watchful eye on government, as key.

Marissa Newman contributed to this report.

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