Menachem Begin championed judicial review now under Likud attack, former aide says
Arye Naor says former Likud leader planted concepts now being undone by government in his attorney general Aharon Barak, who was also given larger role to scrutinize decisions
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Former prime minister Menachem Begin was a driving force in ensuring that government action was subject to legal review, and even urged his attorney general Aharon Barak to be closely involved in such scrutiny, a top aide to the ex-premier said Tuesday.
The comments from former cabinet secretary Arye Naor illustrated sharp contrasts between the revered founding leader of the Likud party and the Likud-led coalition’s current campaign to curb judicial oversight of Knesset and cabinet moves, water down the attorney general’s powers and give governing coalitions control of almost all court appointments.
Barak, who went on to become president of the Supreme Court, has long been accused by the Israeli right of having illegitimately arrogated power for the judiciary over the executive and legislative branches by applying judicial review to Knesset laws, despite no legislation explicitly authorizing such action.
The government’s controversial judicial reform proposals, which would reverse Barak’s innovation, have been borne largely out of efforts to undo what right-wing and religious parties believe to be the judicial overreach of the courts and the legal system in the running of government.
Opponents of the reforms have countered that Israel’s constitutional evolution allowed for and authorized the development of judicial review, and that such a system serves a critical function in providing the only check on executive and legislative power in the country.
In an interview with Army Radio on Tuesday, Naor insisted that one of Begin’s foundational principles for governance was the “supremacy of the law” and that he believed the judiciary should be responsible for ensuring that government decisions and Knesset legislation comport with Israel’s Basic Laws and the tenets of human rights.
“If that group of judges thinks that a law contravenes [Israel’s] Basic Laws or human rights it will have the authority to cancel the law,” Naor said in explanation of Begin’s philosophy.
He quoted from a 1952 paper in which Begin had set down the principle as the definition of “supremacy of the law.”
“Begin saw in the law a framework of principles according to which the state should be conducted on the basis of democracy and human rights,” said Naor, who served as Begin’s cabinet secretary from 1977 to 1982.
Begin, who led Likud and its progenitors from the founding of the state, was the country’s first right-wing prime minister, serving from 1977 until his retirement from politics in 1983.
He is still lauded by Likud supporters, MKs, and leaders for having fought for and represented the large working-class Mizrahi public which constitutes perhaps the largest part of the Likud’s electorate, and in whose name the Likud leadership and the other coalition parties often argue they are seeking to enact the judicial reforms in order to allow their voice to be expressed through right-wing government policy.
But Naor, who went on to author several books and became a lecturer in political science at Ben Gurion University, noted that it was Begin who had sought greater input from the attorney general, Israel’s top legal official, in the everyday running of government.
“Before Begin came to office the attorney general would come to cabinet meetings only if invited for a specific issue and after he addressed that issue he would leave the room,” said Naor.
“Begin invited the attorney general from the first cabinet meeting to be a permanent participant in those meetings, and would involve him not only in legal questions but also how he sees the general situation,” he continued, adding that there was “a great deal of consensus between Begin and Barak.”
In contrast, the current Likud-led government has pushed Attorney General Gali Baharav-Miara to the side and is seeking legislation that will limit the office’s powers and allow ministries to appoint their own legal advisers if they do not like the attorney general’s opinions.
Naor said that it had been Begin who had “established and anchored” the idea of judicial scrutiny over government action and that Barak then took that principle and advanced it, first as Begin’s attorney general and later as a Supreme Court justice and eventually court president.
“According to Begin, every government action needed to be legal, and if not it shouldn’t stand, and [he believed] the same thing for the Knesset, that when the Knesset legislates a law it needs to be commensurate with the Basic Laws of the state and be commensurate with the principles of human rights,” he said.
The High Court of Justice has had judicial review over government decisions and administrative action from the inception of the state. But full judicial review over legislation only developed after the passage of the Basic Law: Human Dignity and Liberty in 1992. Three years later, Barak authored the landmark High Court ruling that courts could strike down legislation if it curtails rights laid out in the basic law.
Observers say Likud, once the flagship of the moderate right, has moved far to the right under Prime Minister Benjamin Netanyahu, elevating boisterous politicians from what was once the party’s far-right flank and pushing aside moderates, including the former premier’s son Benny Begin and former justice minister Dan Meridor.
The party has championed the judicial overhaul, though some of its more extreme tenets have been blamed on demands from coalition allies not necessarily backed by Likud.
In an angry and lengthy post on Twitter last week, Begin’s grandson Avinadav Begin railed against the current Likud party and its support for both drastically limiting judicial review and greatly strengthening government control over the judiciary.
היה לנו כבוד לבנימין נתניהו, עבד יחד עם אבי שנים רבות, כתף לכתף בקידום כל העשיה בישראל: הבטחונית, המדינית, הכלכלית, החברתית והמשפטית.
אני זוכר טלפונים באישון ליל, הייתי מעיר את אבי והוא היה נוסע להתייעצויות, שיחות ארוכות, הקשבה, דיונים מעמיקים, מרחיבי אופקים – אדם רציני.
— אבינדב בגין Avinadav Begin (@AvinadavBegin) May 7, 2023
Like Naor, he insisted that it had been Begin who pushed to enshrine judicial review and human rights into Israel’s constitution, and accused Prime Minister Benjamin Netanyahu and the Likud party of betraying that legacy.
“Basic Law: Human Dignity and Liberty is Menachem Begin’s revolution!” Avinadav Begin wrote on Twitter, crediting his grandfather with laying the foundations for the law, which was enacted 10 days after his death on March 9, 1992.
“Everyone knew, from his home, in his regular meetings every week with [former cabinet secretary and justice minister] Dan Meridor, from his retirement until close to his death, he was the one who pushed to have his teachings established in the foundations of the constitution, the court did not ‘take for itself’ authority, it was given legally,” he wrote. “Likud was proud of this, read the documents! Hear the testimonies!”
Although the 1948 Declaration of Independence stated that a constitution for the state would be drawn up and that the country would guarantee an array of social and political rights, efforts to create such a constitution were abandoned in 1950; instead, Israel’s basic laws have been used as the basis for a piecemeal constitutional framework.
The first effort to enshrine basic human and civil rights in law came in 1964 when MK Yitzhak Klinghoffer introduced his draft “Basic Law: Bill of Fundamental Human Rights,” although the legislation was not advanced.
A similar bill entitled Basic Law: Human and Civil Rights proposed by MK Benjamin Halevy in 1973 passed its first reading in the Knesset plenum, but also ultimately failed to be passed into law.
It was only following a four-year process begun by Meridor in 1988 as justice minister under Yitzhak Shamir that a law enshrining human and civil rights in Israel, Basic Law: Human Dignity and Liberty, was finally passed.
“Aharon Barak was his confidant,” wrote Avinadav Begin. “My grandfather welded him to the government table as attorney general.”