AnalysisCourt's own president is key player in complex legal drama

‘Unprecedented’ petition forces Israel’s top court to rule on its own conduct

How an effort to force justices to attend an event celebrating West Bank settlement threatens to deepen the rift between Israel’s brawling branches of government

Raoul Wootliff

Raoul Wootliff is the Times of Israel's former political correspondent and producer of the Daily Briefing podcast.

A general view of the Supreme Court during a ceremony for outgoing Deputy Supreme Court President Elyakim Rubinstein on June 13, 2017. (Yonatan Sindel/Flash90)
A general view of the Supreme Court during a ceremony for outgoing Deputy Supreme Court President Elyakim Rubinstein on June 13, 2017. (Yonatan Sindel/Flash90)

A long-brewing battle between what has been described by some as Israel’s most right-wing government ever and what is perceived by others to be its vehemently liberal-leaning Supreme Court came to a head Wednesday with an unprecedented petition filed against both. Unsurprisingly, the court ruled in favor of itself, over the protests of the government, ending the specific legal tussle, but with the fundamental dispute more intense than ever.

On face value, the petition seemed wonkish, perhaps even petty. It called on the twin High Court of Justice and Supreme Court to decide whether a specific event should be classified as an official state ceremony or not, and therefore require obligatory attendance by state representatives.

But the petition, filed by the pro-settlement Regavim group against the government, the prime minister, two other ministers and their specific ministries, the Supreme Court, its president and finally “the judicial branch,” was anything but trivial. And the event in question, a Wednesday evening ceremony marking 50 years of Israeli settlement in the West Bank and Golan Heights, funded by the Culture and Education ministries to the tune of NIS 10 million ($2.8 million), has turned into a political lightning rod.

Much of the international community views West Bank settlements as illegal and has frequently tried to pressure Israel to halt construction beyond the Green Line. The Palestinians say the settlement enterprise is one of the major obstacles to reaching a peace deal. Most settlements are legal according to Israeli law — though Israel has never extended its sovereignty over the West Bank — and many Israelis see the area as Israel’s by historical and biblical right.

After a two days of political back and forth, the court announced Wednesday evening, less than an hour before the event was set to begin, that the petition — in which it was one of the targets and its own president a central player — had been rejected.

In essence, the petition was an attempt to force Chief Justice Miriam Naor to rescind a decision to boycott the event and obligate her to send one of the Supreme Court justices to attend. The petition argued that “participation of senior members of the three branches of government in official state ceremonies is as much a part of accepted ‘constitutional protocol’ as it is binding.” If the event is an official state ceremony, as it had been billed, the judicial branch must have a representative there, the petitioners argued.

President of the Supreme Court Judge Miriam Naor, August 31, 2017. (Yonatan Sindel/Flash90)

Naor announced Tuesday that she would be cancelling Justice Neal Hendel’s participation in the ceremony, saying it would be “inappropriate” for him to attend. Her decision, which came in response to a request by left-wing Meretz MK Issawi Frej, drew instant and vociferous criticism from right-wing lawmakers, with ministers throwing accusations of political bias, bigotry and even anti-Zionism at the court.

And while the petition was filed against both the court and the government, the responses from the separate institutions highlighted, and maybe even deepened, a rift between the two over which has seniority over the other, and whether the court should be forced to, in some cases, follow the government’s ideological line.

In her response to the court on Wednesday, hours before the event, Naor doubled down on the decision, saying that the judiciary should not be involved in “controversial” political events and that it would be inappropriate for one of its justices to attend a ceremony “devoted to one side.” She added that forcing a Supreme Court justice to the event would violate the court’s ethic rules.

But rather than defend its fellow respondent, the government took the side of the petitioners, contending that because the event was an official state ceremony, it shouldn’t be considered political.

Attorney General Avichai Mandelblit attends a Constitution, Law, and Justice, Committee meeting in the Knesset, July 18, 2016. (Miriam Alster/Flash90)

According to Attorney General Avichai Mandelblit, who responded on behalf of Prime Minister Benjamin Netanyahu and the other government bodies, the event holds “special significance” and “it is appropriate that a representative of the Supreme Court attend.”

The final decision, somewhat unsurprisingly, favored Naor’s position, and ruled that the court did not need to send representatives to the event.

Barak Medina, a constitutional law professor at the Hebrew University, said the motion put the court in an awkward situation, not because it had to rule against the government, but because if it didn’t, it would have been ruling against itself.

“There is no real precedent in Israeli legal history for this,” he said, noting that while petitions have been filed against the court in the past, they have always been over procedural motions regarding other cases, never in order to force its hand outside of the court room.

“Ultimately, the petition will have no practical effect on the relationship between the government and the court,” Medina said, “but the symbolism is unmissable.”

The impasse came on the heels of a series of Supreme Court rulings that unraveled existing Knesset legislation, including on the parliament’s 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.

At the same time, the court has faced right-wing attempts, spearheaded by Justice Minister Shaked (Jewish Home), to rein in its powers and change the makeup of the justices to incorporate more conservative views. Last week Shaked and Jewish Home chair Naftali Bennett proposed a bill to “restore the balance” between the legislature and judiciary and circumvent the High Court of Justice in the event justices disqualify Knesset legislation.

Jewish Home leader Education Minister Naftali Bennett, center, with fellow Jewish Home lawmaker Justice Minister Ayelet Shaked, right, and Public Security Minister Gilad Erdan during a plenum vote on the Regulation Bill on November 16, 2016. (Yonatan Sindel/Flash90)

The Supreme Court has frequently irked right-wing 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 as key both the need to protect individual rights against other arms of the law, and to keep a watchful eye on government.

The court’s defenders say its powers have developed to fill the void left by a Knesset that is famously unable to settle vital questions of law and society and that frequently avoids deciding on issues of religious freedom, civil liberties or the rights of Palestinians.

Wednesday’s decision by the High Court is likely to spur further calls to limit the court’s power.

A spokesperson for the Justice Ministry, which filed the state’s response on Wednesday, said that the petition presented the court with a conflict of interest. “They are ruling on themselves,” he said.

He then admitted, however, that there was no other mechanism to make a decision on the petition. “They are the court. They decide,” he said, “for now.”

Jacob Magid contributed to this report.

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