The lingering threat to Israel’s Supreme Court and to its rule of law

A fight for the soul and future of Israel like no other since 1948

The passing of Israel’s cherished former Supreme Court Chief Justice Shamgar (laid to rest this week) reminds us of the lingering threat to Israel’s Supreme Court and to its rule of law.

24/10/2019 22:09

Tags: Supreme Court ·  Benjamin Netanyahu ·  Benny Gantz

Rabbi Uri Regev being interviewed by reporters following Supreme Court hearing on permitting non-Orthodox military burials in Israel (July 4, 2019)

You are surely familiar with the delicate, seeming deadlock of Israel’s current political reality. The second round of elections this year did not prove decisive, and Netanyahu, unable to turn his political bloc of 55 MKs into the required minimum of 61, has returned the mandate to form a coalition to President Rivlin. The President transferred it last night to the leading opposition contender – Benny Gantz. On the face of it, there is not much likelihood of Gantz putting together a majority. The talk about trying a minority government, supported from the outside by the United Arab List is questionable at best.

Gantz’s speech upon accepting the mandate last night was long and impressive. It was clearly crafted by professional consultants and included a compelling array of concepts and phrases denoting unity, collaboration, and consensus building. However, the problem is that his selection of labels seems removed from the sharp and real divisions constituting Israel’s political palette, and, potentially, contradicts the main promises contained in Blue & White’s own platform. The coming days will show if this phase of the coalition building process will be any different than the previous one, or whether it will come to a dead end.

The passing of Israel’s cherished former Supreme Court Chief Justice Shamgar (laid to rest this week) reminds us of the lingering threat to Israel’s Supreme Court and to its rule of law. We have repeatedly underscored this key threat, alerting our readers in recent months to the concern that should the outgoing coalition remain in power, this threat would be actualized. We have especially focused on the deleterious role played by the Orthodox parties in making this threat so real and dangerous to Israel’s future.

In anticipation of the elections, Hiddush’s J-Plan (Jewish pluralism legal action network) drafted a special appeal to Israel’s leaders, expressing their dire concern and opposition to the demands aimed at undermining Israel’s Supreme Court. Below are a few selections from this communication, and we urge you to bring it to the attention of your friends and family who are lawyers and legal scholars, urging them to sign on to it HERE: https://drove.com/.Zj4

The threat remains, and therefore there is great need for lovers of Israel’s Jewish and democratic character to understand it and lend their names to standing up against it.

Among the eulogies heard this week for the departed Chief Justice Shamgar was that of Ayelet Shaked, the past Justice Minister who prides herself for stacking the judicial appointments and expressing criticism of judicial activism and review of Governmental and Knesset actions. While she understood that such sentiments would not be appropriate at Shamgar’s funeral, she nevertheless said – “he made his imprint in all areas and positions he held. He was one of the founders of the constitutional revolution, which some view as being to his credit – and I to his discredit.” On another occasion, reacting to a Supreme Court ruling she objected to, she said, “Zionism will not continue bowing its head before a universalistic system of individual rights… Zionism has become a blind spot for the judiciary…”

Yet it is the people who are closest to PM Netanyahu who have been voicing an opposite approach and have viciously undermined and eroded the Supreme Court.

Prime Minister Netanyahu, on the other hand, stressed that “The balancing between the three branches – legislative, executive, and judicial is constantly being formed. There is built-in tension regarding the demarcation lines between them. That tension is not a fault in democracy; it is the essence of democracy. As long as a simple principle, which I carefully observe throughout my years as Prime Minister, is preserved: that the court must remain independent.”

Yet it is the people who are closest to PM Netanyahu who have been voicing an opposite approach and have viciously undermined and eroded the Supreme Court.

For instance, Minister Yariv Levin, now heading Netanyahu’s coalition negotiating team, and who was a prime candidate for Justice Minister after Shaked and Bennett were fired from the cabinet, said things like: “It’s time for action, and first and foremost a determined process to overhaul, from the foundation, the system of selecting judges.” This was an attack that he launched when the current Chief Justice was appointed to her position, describing her selection as “a fictitious selection process.” Levin, on another occasion, called a Supreme Court ruling he objected to “shameful,” and said that with their decision, the Justices “were continuing to act against Israeli democracy and the clear law making of the Knesset.” It is little wonder, therefore, that as he attempted to pave his way to become Justice Minister, he said, “Nothing will deter me. I am determined to continue the struggle in the judicial system, and there is no question that a big change is coming.”

Similarly, the one who Netanyahu ultimately appointed as Justice Minister, Amir Ohana, said “in Nazi Germany there were laws that shouldn't have been enforced. Just as there are illegal orders and illegal laws, so there are also illegal court rulings." According to Ohana, "the state's first responsibility is the wellbeing of its citizens, and when the High Court of Justice interferes in decisions that could harm citizens' wellbeing, I would expect the government to draw a red line and say 'enough.'”

While we hope that the unity, civil coalition preferred by the public, which brings together the Likud with Blue & White would neutralize such threats to the Supreme Court, it would clearly not make them go away. Therefore, the need to be vigilant regarding the critical importance of not only an independent judiciary, but also one that can pass judicial review on governmental infractions and not be subject to abuse and intimidation in the guise of legitimate criticism. Exposing this lingering threat and speaking out against it are essential if we are to keep Israeli democracy functioning.