Courting conflict
This posting has these items:
1) Ynet: Europe and US keep watchful eye on Israel’s legislative plans;
2) Times of Israel: Is Ayelet Shaked planning to strangle the High Court?;
3) Adalah: Israeli Supreme Court approves demolition of Umm el-Hieran and displacement of Arab Bedouin residents to build Jewish town of ‘Hiran’;
4) Ynet: There is very little Shaked can do in the Justice Ministry, she has no experience, no Prime Ministerial backing says Nahum Barnea;
5) Ynet: Shaked’s appointment causes concern in Israel’s judicial system;
Pro-settler Cabinet members Ayelet Shaked and Naftali Bennett prepare for absolute power. Photo by Michael Chelbin.
Europe and US keep watchful eye on Israel’s legislative plans
Western diplomats express concern of ‘anti-democratic’ legislation pushed by incoming justice minister Shaked, saying it ‘looks designed to shut down criticism’.
By Luke Baker, Reuters / Ynet
May 08, 2015
Benjamin Netanyahu’s formation of one of the most right-wing government in Israel’s history has fuelled concerns in Europe and the United States about further settlement building and dimming prospects for peace.
But it also has diplomats on edge about wider policy proposals, particularly on social and judicial affairs, where the far-right Bayit Yehudi party, an influential member of Netanyahu’s coalition, is determined to leave its mark.
Ultra nationalist Bayit Yehudi, led by former technology entrepreneur Naftali Bennett, has secured two important cabinet portfolios: the education and diaspora ministry for Bennett and the justice ministry for his number two, Ayelet Shaked.
Shaked, a 39-year-old former software engineer, is a divisive figure in Israeli politics, making outspoken comments against Palestinians while promoting a pro-settler agenda.
Since entering parliament in 2013, she has backed a number of controversial bills, including one that would enshrine Israel as the Jewish nation-state, to the anger of Israel’s 20 percent Arab minority. Shaked also wants to check the Supreme Court’s power and restrict donations from foreign governments to non-governmental organizations in Israel.
As justice minister, she will be in a position to push those legislative proposals more aggressively, with the NGO and judicial oversight bills expected to move ahead.
For foreign diplomats, that raises as many concerns about the direction Israel is moving in as the expansion of settlements on land the Palestinians seek for a state – a profound, long-standing bone of contention.
“The red lines for us aren’t just about settlements,” said the ambassador of one EU member state.
“When you look at some of the legislation being proposed, it is very worrying. It is anti-democratic and looks designed to shut down criticism. It’s the sort of thing you normally see coming out of Russia.”
Trigger for action
US diplomats have flagged their concerns too, while emphasising that they need to wait to see how the legislation pans out. With the narrowest of governing majorities – just 61 seats in the 120-seat parliament – it will be a challenge for Netanyahu to get new legislation approved.
The nation-state bill, perhaps the most contested piece of law in Israel’s recent history, looks unlikely to progress because one member of the coalition, Moshe Kahlon, the leader of the centrist Kulanu party, has an effective veto.
But the NGO and judicial oversight bills have a better chance of advancing, with Avigdor Lieberman, the leader of the far-right Yisrael Beytenu party, a former ally of Netanyahu’s who is now in opposition, likely to support them.
The NGO bill would impose a heavy tax on foreign donations to non-governmental organizations operating in Israel, unless a special defence ministry committee decides otherwise.
“It’s part of a broader effort to limit the political space, to squeeze out opposing views,” said Matt Duss, president of the Washington-based Foundation for Middle East Peace.
“It has very negative connotations. It creates a hostile environment for those who express legitimate criticism and would put Israel in some very bad company.”
In Europe, officials are discussing what steps may be taken against Israel if it continues to expand settlements, a process that continues apace, with tenders for 900 units in East Jerusalem issued this week.
Israelis frequently fret that Europe is going to impose a trade boycott on them. No such action is likely.
The EU does restrict loans to Israeli research bodies based in the West Bank, however, and is moving ahead with plans to label Israeli products made in West Bank settlements. Other measures are quietly being debated.
In the past, the trigger to move ahead with such steps was settlement-building, which the EU regards as illegal under international law. But now, Israel’s legislative agenda may be as much of a danger.
“It is a deep concern for us,” said the European ambassador. “It is the sort of thing that is a red line.”
Amnon Rubinstein. Photo by Tomer Appelbaum
Is Ayelet Shaked planning to strangle the High Court?
The furor over the identity of Netanyahu’s incoming justice minister is obscuring one of the most important constitutional debates in Israel’s history
By Haviv Rettig Gur, Times of Israel
May 15, 2015
Former MK Amnon Rubinstein is everything that incoming justice minister Ayelet Shaked is not: a legal scholar; a man of the left; an advocate for separation from, and independence for, the Palestinians. As the Israel Prize-winning author of Israel’s two rights-granting basic laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Vocation, Rubinstein is also the closest thing Israel has to a constitutional founding father.
But it is Shaked, a right-wing activist with no legal training, a lawmaker with just two years’ experience but no shortage of opinions when it comes to reforming the legal system, who was sworn in as Israel’s new justice minister on Thursday night. And that fact has drawn a torrent of rancor and vituperation from the left in recent days.
Among the reforms Shaked is expected to pursue, three are pivotal to her political programme and identity — splitting the attorney general post into two or even three different offices; giving the Knesset the power to overrule High Court of Justice decisions; and reducing the voting power of Supreme Court justices on the Judicial Appointments Committee.
Left-leaning media, politicians and even foreign governments have railed against or warned about such measures, which they claim would endanger Israel’s democracy.
In response, supporters on the right have charged that the Supreme Court is over-powerful and unrepresentative of Israeli society, that the attorney general and other elements of Israel’s legal system possess unchecked power that must be reined in.
It is in the context of this Manichean divide that the figure of Amnon Rubinstein can be a helpful signal that something important is missing from the debate. The law school dean and former Meretz cabinet minister has expressed views that don’t fit the neat battle lines of the culture war.
Speaking to this reporter in 2007 about the post of the attorney general, Rubinstein had this to say: “The problem is that the same person is head of the state prosecution and the government’s attorney. I don’t envy the attorney general, who must sit in cabinet meetings, offer his legal advice, and then prosecute the cabinet members. There has to be a division between these two functions.”
It isn’t just cabinet members who are disserved by this overlap between prosecutor and defense attorney. Israel’s attorney general is not subject to any meaningful oversight, Rubinstein fretted. Indictments do not have to receive the imprimatur of any American-style grand jury or British-style committing magistrate.
“We’re in a peculiar position in which the attorney general and his representatives can indict any person without judicial examination, and can interfere in proceedings already started, such as closing a case or plea-bargaining, without judicial intervention,” Rubinstein said.
Such scathing indictments of Israel’s highest law-enforcement post are not typically thought of as left-wing critiques. Indeed, when the right-wing advocacy group Movement for Governance and Democracy rails against what it calls the runaway powers of this institution, the criticism is brushed off by the mainstream elites as marginal, even extremist.
But Rubinstein’s example suggests this respectability gap is at least in part a function of culture, not substance.
Indeed, the debate over judicial and legal reform more generally, both in parliament and the press, has been profoundly partisan. The High Court is either the opponent of the democratic processes of parliament, or the last bastion of democracy in the face of an aggressive, ascendant right-wing; the attorney general either an unelected, unchecked ideologue, or the nation’s last line of defense against a comprehensively corrupt political class.
As with so many issues in Israel’s wildly and at times debilitatingly contentious political culture, the substance of the debate is all but lost as the elites of left and right rail against each other with abandon.
And equally in keeping with tradition, one side’s narrative is accepted without challenge outside Israel’s borders. “The coalition agreements signed by the prime minister and his partners set a course that will likely undermine core pillars of Israel’s democracy, the independence of its Supreme Court, as well as efforts to better integrate the ultra-Orthodox into the workforce and into the army,” J Street president Jeremy Ben-Ami wrote to the group’s supporters on Wednesday.
Minister Shaked
Justice Minister Shaked has certainly earned no small measure of the concern over her appointment. Shaked herself spent the last few years as an activist and politician wading knee-deep in Israel’s political culture wars, often wielding uncompromising rhetoric similar to that with which she’s now being assailed.
Shaked’s two years in parliament have also taught observers a few things that suggest her term as justice minister will likely see more substance than noise — a fact that only adds to the sense of panic among her detractors.
For one thing, she’s smart. That’s not something one can assume of freshman lawmakers, but Shaked proved herself one of the most competent and formidable of the last Knesset’s parliamentarians. She took on issues she knew little to nothing about — the ultra-Orthodox draft bill she spearheaded is a good example — and soon became one of the Knesset’s recognized experts on them, a fledgling who quickly transformed into a key architect of some of the last Knesset’s most complex legislation.
Second, she’s blunt and decisive to the point of being cold and inaccessible, a personality trait that adds to her reputation in the halls of parliament as an unsentimental doer.
Shaked is not currently interviewing on these issues ahead of the swearing-in of the new cabinet, but there is a long record of her public statements and some appointments that together point to a clear direction for the new justice minister. These factors — the ferocity of the debate, the scale of the legal and judicial reforms Shaked supports, and her no-nonsense reputation — all suggest it is vitally important to understand the substance of her vision, a vision she appears to have every intention of attempting to implement.
Weakening the High Court
No reform has elicited more scathing criticism and fear than the right’s plans to weaken Israel’s Supreme Court.
There are two key issues surrounding the court that Shaked is likely to target for reform — the de facto veto power Supreme Court justices currently wield over the appointment of judges, and the Knesset’s inability to overturn Supreme Court decisions.
The first issue most distresses the right, who accuse the court of effectively representing only a narrow elitist clique within Israeli society.
The Judicial Appointments Committee, chaired by the justice minister, currently has nine voting members — three Supreme Court justices, two members of the Israel Bar Association, two members of Knesset (one each from the opposition and coalition) and two cabinet ministers. Under rules passed in the Knesset in the mid-2000s, a majority of seven is required to appoint a judge, giving the three-member Supreme Court delegation a de facto veto over any appointment.
The justices, right-wing lawmakers note, have never split their votes in the committee.
The right prefers to focus on appointments because its case is straightforward: No other supreme court in the democratic world enjoys such veto power over the appointment of new justices. Shown Ben-Ami’s Wednesday statement, one right-wing Knesset official wondered if the American Jewish activist’s understanding of what the “independence of [Israel’s] Supreme Court” entails suggests he supports giving America’s Supreme Court a similar power to veto appointments.
The second issue — empowering the Knesset to overturn a Supreme Court decision — is the one that most worries the left.
Here the picture is more complex. In the United States, the Supreme Court’s word is final, as it is in Israel. It can be overturned only by the court itself or through the herculean effort of passing an amendment to the Constitution. In other democracies, however, parliaments are empowered to overrule or even simply ignore the court through the employment of special majorities or other measures.
There is precedent, in other words, for both a strong court and a weak one. But the right’s argument on this point hinges on what is special about the Israeli case: In democracies where the court is powerful, its reach — in legal terms, what is “justiciable” — is profoundly limited. In Israel, there is almost no limit to who or what can come before the court.
The reason: Unlike the American Supreme Court, the Israeli counterpart is actually two distinct institutions, each staffed by the same 15 justices. It is both the Supreme Court, Israel’s highest appeals court, and the High Court of Justice, a British-style court of equity in which any citizen — or, indeed, non-citizen — can appeal against any state institution in real time.
Thus, while the American court handles a few dozen cases each year, the Israeli court hears several thousand. And while the American court tackles cases that have spent years winding their way up the judicial hierarchy, the Israeli court, wearing its High Court of Justice hat, hears daily appeals against government policies and actions — and often changes or reverses those policies at a single week’s notice.
Israel’s High Court of Justice has repeatedly changed the path of the West Bank security fence after Palestinian farmers and advocacy groups sued the army. It struck down government policies on African asylum seekers and the ultra-Orthodox draft. It even, in the famous case of the 2002 battle of Jenin, ordered the army to cease its advance into the city until it could hear complaints alleging that the army was violating the laws of war. The army, needless to say, froze in place while the court heard the arguments.
Those cases illustrate a great deal about the debate surrounding the High Court of Justice — both the reasons the left is so desperate to defend its powers, and the unprecedented sweep of the powers themselves, especially considering the court’s de facto control over its own appointments. Put simply, there is a great deal of truth to the right’s argument that what is essentially a self-appointing court wields powers that in other democracies lie squarely with the executive branch.
They also clarify the trap into which the left risks falling. In explicitly supporting so powerful a court not for constitutional or legal reasons, but because its decisions more often than not overlap with the left’s political views, the left arguably bears part of the responsibility in creating the perception that the court has become a de facto political actor, and so is a legitimate target for political attack.
The most serious proposals currently on the table for curtailing the court’s powers are twofold: diluting the justices’ voting strength on the Judicial Appointments Committee, possibly by expanding the committee to 11 members with the two additional votes coming from the Knesset or cabinet; and granting the Knesset the right to pass laws that overturn High Court of Justice rulings.
It is this second proposal that has raised the ire of the left, and of the world. But the criticism is not limited to opposition members and foreigners. Likud stalwarts such as President Reuven Rivlin, Defence Minister Moshe Ya’alon, former ministers Benny Begin and Dan Meridor, and others have gone on the record over the years expressing reservations over such a move. Indeed, Prime Minister Benjamin Netanyahu, while largely avoiding wading publicly into the battles over the judiciary, has ordered similar bills quashed in past Knessets.
The bill currently being championed on the right focuses not on stripping the court of its powers, but on granting the Knesset new ones. The Basic Law: Freedom of Vocation is the basic guarantor of individual economic rights, granting Israelis “the right to engage in any vocation, profession or trade,” and delineates specific conditions under which this right may be abridged.
But Article 8(a) of the Basic Law allows for the temporary suspension of this right under three conditions — that any law violating this right pass in the Knesset with a majority of 61 MKs; that it explicitly state in the law that it is in violation of the Basic Law: Freedom of Vocation; and that the law expire after four years.
In other words, the Basic Law ensuring economic freedom can be suspended by a parliamentary majority — but the suspension must be renewed by successive Knessets.
The right-wing reform likely to be taken up by Shaked seeks to place a more or less identical article into the Basic Law: Human Dignity and Liberty. It is this law which contains the language on which the High Court of Justice relies in its rulings, so that allowing the Knesset to violate the law with a majority vote would effectively grant it the right to overturn High Court rulings against government actions.
It is, in effect, a strategy of limiting the court’s power by granting the Knesset the power to suspend rights guaranteed in the Basic Law.
Critics — and there are many — point to the moral difference between the two Basic Laws. Abridging one’s right to work is not the same, many argue, as abridging the rights guaranteed by Human Dignity and Liberty, including the rights to life, property, privacy, freedom of movement and the more amorphous but no less compelling right to “dignity.”
On this point it is the left that has taken up the principled argument. There is something galling, the left says, in allowing a straightforward Knesset majority the constitutional power to suspend Israeli citizens’ right to, for example, life.
While the public debate has often been hopelessly belligerent, with the right railing against the court’s supposed descent into partisan interventionism and the left’s rhetoric sharpened by the frustrations of political powerlessness, the discussions within parliament have been more substantive.
Sources close to Shaked openly acknowledge that the question of subjecting Israel’s most sacred basic law to the brutalities of political wrangling is a delicate one. One proposal currently being bandied about on the right suggests that the majority required to overturn a High Court ruling be raised as high as 70 MKs — in other words, that a more significant majority be required to counter the court — but that the court’s original ability to strike down legislation also be curtailed by requiring a two-thirds majority of the full court.
That is, instead of the current situation in which a single justice can hear a case in a single day and issue a ruling overturning a major government policy, such dramatic powers would only be granted to 10 justices sitting in a 15-justice quorum.
If the court’s powers to overrule the Knesset were thus checked, these sources suggest, the Knesset would limit its own sought-after powers to overturn the court — assuming, of course, that the judicial appointments process is reformed to allow for a more diverse group of judges in that 15-member quorum.
The schizophrenic attorney general
The battle over the attorney general’s post is less visceral, but otherwise bears striking similarities to the Supreme Court debate. The institution’s unchecked power is undeniable, while the rival campaigns to limit or preserve that power are just as partisan.
It is undeniable that the state’s defence attorneys quite literally work for the state prosecution, that the chief state prosecutor is literally the boss of the person who will stand against him or her in the most high-profile cases on the legal system’s docket. And both posts, needless to say, are subject to the decisions of the same post: the attorney general.
Yehuda Weinstein, photo Yonatan Sindel/Flash 90
It is similarly undeniable that the attorney general post is trapped in a kind of schizophrenia, serving at once as the cabinet’s legal adviser and the official who will indict its members. Cabinet members facing corruption investigations pointedly avoid criticizing the current system, but that fact only highlights the problem: that the attorney general’s office oversees both their defense, and is the lead prosecuting agency they need to be defended from.
A constitutional moment?
The political philosopher and former MK and education minister Yuli Tamir has offered a more subtle warning about the current Israeli constitutional debate.
Tamir’s sympathies are obvious. She was one of the founders of Peace Now in the late 1970s and served in three Knessets as a Labor MK. But her concern is not simply that the right might win this fight, but that the Israeli political class generally is not honestly engaged in what amounts to a fundamental constitutional debate.
“Constitutional moments” — moments when political elites are able to detach from the demands of immediate partisan politics and consider the long-term good, the welfare of minorities and the limits that should be placed on their own power — “are rare,” Tamir said on a recent panel in Jerusalem.
“We’re not in such a constitutional moment.”
Yuli Tamir, photo from Flickr
Ultimately, the shallowness of the debate may be its most worrying element.
It is no accident that Israel’s judiciary and law-enforcement officials have grown so powerful; in a Jewish political culture, it would be strange if the arbiters of the law, the traditional role of venerated rabbis throughout Jewish history, did not hold such pride of place.
As even Ayelet Shaked noted on Wednesday in a meeting with Romania’s Justice Minister Robert Cazanciuc, in her first public comments since the announcement of her appointment as justice minister: “We are proud of our Supreme Court. It is among the world’s leading high courts and its justices are outstanding.”
As the right seeks to rein in what is arguably the most powerful high court in the free world, even at the cost of weakening the law that serves as Israel’s “Bill of Rights,” and the left springs to defend the court’s unchecked power on essentially partisan grounds, one might be forgiven for concluding with Tamir that, whatever the outcome, this debate is not the constitutional moment that Israel deserves.
The challenge for Shaked, and perhaps the defining question of her legacy, will be how she navigates that debate, reins in the court but not the rights it enforces, empowers the Knesset without tearing down the judiciary’s role as protector of minority rights, and above all, abandons the rhetorical partisanship with which she rose to power in favor of a more responsible sensibility that acknowledges the sanctity and delicacy of her new charge.
On May 5th the Supreme Court ruled that the 500 residents of the Bedouin village of Umm el-Hieran in the Negev could be evicted and the village demolished and replaced by a Jewish town to be called Hiran. Two years earlier, on 20 February 2013, the Israeli Supreme Court rejected a petition filed by Adalah to connect the village to the national water network. The Court ruled that the current water source of the village – a private citizen who lives 4 kilometres away and sells water to the villagers at exorbitant prices – constituted “sufficient access”.
Statement by Adalah
May 06, 2015
The ruling completely ignores the political, social and historical roots of the community, and legitimizes the racist demolition and displacement of an entire Arab village to build a Jewish town.
Last night, on 5 May 2015, the Israeli Supreme Court decided to approve the state’s plan to demolish the Arab Bedouin unrecognized village of Umm el-Hieran and evict its Bedouin residents, citizens of Israel, in order to establish a new Jewish town, to be called ‘Hiran’ over its ruins. The Court’s 2-1 decision follows 13 years of legal struggle waged by Adalah and the villagers to cancel the eviction and demolition orders.
In its ruling delivered by Justice Elyakim Rubenstein, the Court acknowledged the state’s intention to demolish the Bedouin village in order to build a town “with a Jewish majority.” The Court also recognized that the Bedouin residents of Umm el-Hieran were not trespassers and had not entered the land illegally – a claim initially made by the state – but were moved there in 1956 by Israeli military order, after having their land confiscated and after having been displaced from their original village of Khirbet Zubaleh. Nonetheless, the Court concluded that the state had merely allowed the Bedouin citizens to use the land, which was state land, and therefore the state could still recover it and do with it as they wished.
Justice Rubinstein argued that the petition should be dismissed for two reasons. The first reason was that the case ought to have been taken to other bodies, such as land and planning committees, because it was an “indirect attack” on the plan to build new homes and infrastructure for the town of Hiran. The second reason was that even if the Bedouin citizens’ rights were being harmed in some way, the state was providing “alternatives” for the Bedouin residents to live elsewhere.
In the dissenting opinion, Justice Daphne Barak-Erez wrote that the state’s decisions concerning the village contained many “flaws” due to the fact that the Bedouin residents of the village were not trespassers on the land, and the state should therefore reconsider the compensation offered to them for their relocation. The justice also suggested that the state should consider offering the Bedouin residents a plot of land to live on as part of the new town of Hiran.
In response to the decision, Adalah Attorney Suhad Bishara , who has been representing the villagers for 13 years, commented: “The Supreme Court condoned a discriminatory and racist state plan, which gives the state the ‘right’ to do what it wants with the people and with the land. Despite the fact that the Court found that the residents were not trespassers, it nevertheless upheld their ‘uprooting’. The ruling completely ignores the political, social and historical roots of the community, and legitimizes the demolition of an entire Arab village and the displacement of all of its inhabitants in order to build a Jewish one.”
Adalah will work closely with the villagers, human rights organizations and other partners in the coming days to evaluate the next steps that can be taken to defend the residents and the village against the discriminatory plans for demolition and displacement.
Case Citation: (Supreme Court) Appeal 3094/11, Ibrahim Farhood Abu al-Qi’an, et al. v. The State of Israel (decision delivered 5 May 2015)
There is very little Shaked can do in the Justice Ministry
Two justice ministers tried to revolutionize Israel’s legal system and failed; one had extensive political experience, the other had a professional reputation, and they both had the prime minister’s full support. Ayelet Shaked has none of that.
By Nahum Barnea, Op-ed: Ynet news
May 11. 2015
One day, one of the ministers of the outgoing government, a Likud member, wanted to carry out a problematic move. When Attorney General Yehuda Weinstein ruled that the move was inappropriate, the minister wasn’t offended.
“We have different audiences,” he said to Weinstein. “You are aiming at the Supreme Court; I am aiming at my voters. I accept your decision, as long as my voters know that it’s not me – it’s you.”
This quote appears to faithfully reflect the three Netanyahu governments’ conduct towards what is known as the rule of law. During the terms of these governments, quite a few bills were submitted in a bid to curb the Supreme Court’s power and harm human rights, individual rights and the democratic discourse, and they were all warded off.
Netanyahu usually had someone to do this service for him: Weinstein of course, and former Justice Minister Tzipi Livni on the political level. Unlike in any other issue, in this issue Netanyahu didn’t demand any credit. He preferred to be the saint whose job is done by others.
The question is what will happen in his fourth government, the government which will be established this week. It’s a particularly intriguing question because this government’s justice minister will be Ayelet Shaked of the Bayit Yehudi party, a diligent and ambitious politician, who has strongly criticized the existing laws and legal establishment in the past.
At this stage in her career, Shaked takes her opinions seriously. She will want to leave a mark, and will want to do it fast, before the 61-member coalition collapses. The issues on her immediate agenda include the law against left-wing NGOs, the nationality law and the law to bypass the High Court. The question is what can she do.
If you ask Justice Ministry officials, the answer is: Very little. The justice minister has two important jobs – only two. One is head of the Ministerial Committee on Legislative Affairs, and the other is head of the Judicial Selection Committee. If Shaked survives until February 2016, she will have a certain amount of influence on the selection of the next attorney general – or, alternatively, on extending the current attorney general’s term.
Tzipi Livni took good advantage of her position as head of the Ministerial Committee on Legislative Affairs in order to curb the influx of radical bills submitted by Likud ministers and Knesset members. Shaked can allegedly use the same power to do the opposite – but it’s not that simple. Livni relied on Weinstein and on a consensus in the legal system. And most importantly, it’s easier to curb bills than to advance them.
Shaked will first and foremost have to gain the support of Finance Minister-designate Moshe Kahlon, who received in the coalition agreement the right to veto some of the right’s bills. She will then have to discuss it with the attorney general, who expressed his reservations over three bills in the past; and finally, she will have to make sure that she has a majority in the Knesset. In a 61-member coalition, that’s not an easy task.
The highlight of the Judicial Selection Committee’s work is appointing Supreme Court judges. At the moment, the quota is full. New judges will only be selected in 2017. Even if Shaked survives in the Justice Ministry until then, she will have to get a majority to support her candidate. She can, of course, try to change the makeup of the committee – but she will then encounter the same difficulties I mentioned earlier.
Last but not least, the selection of the next attorney general. The selection process gives two people, the prime minister and the Supreme Court president, more power than it gives the justice minister. Assuming that the rules of the selection are maintained, Shaked will have to reach an agreement with both of them – or watch the attorney general’s selection on the side. If “special circumstances” are created – when one wants, there is always a cause for a circumstance – it will pave the way to a government decision to extend Weinstein’s term.
Two justice ministers tried to revolutionize the system – Haim Ramon and Daniel Friedmann. They both had the prime minister’s full support, an advantage which will not be given to Shaked. One had extensive political experience; the other had a professional reputation. Nonetheless, they were both stopped. The legal system is that strong.
In some sense, what happens to Ayelet Shaked in the Justice Ministry will point to the fate of the entire government. It can be loyal to everything its ministers promised the voters; alternatively, it can stagnate and settle for appointments and budgets. The rhetoric of the government’s components during the elections almost calls for the following prayer: Give us a stagnant government, a paralyzed government.
Shaked’s appointment causes concern in Israel’s judicial system
While some are comparing the Bayit Yehudi MK’s tenure to that of Daniel Friedmann, the latter was a law professor and Harvard Law School graduate.
By Aviel Magnezi, Ynet news
May 07, 2015
The members of Israel’s judicial system rarely express themselves in public, let alone about a controversial new justice minister. But in recent days, in particular since it emerged on Wednesday night that Ayelet Shaked will indeed receive the post, the judicial world has been in uproar.
On one predominant concern is that the judicial system is now entering an era of power struggles against efforts to curb its power – including that of the Supreme Court. While former minister Daniel Friedmann is frequently mentioned in comparison, Friedmann was a law professor and Harvard Law School graduate, not a former high-tech worker with a strong political agenda. Some, however, are willing to afford Shaked one hundreds days of grace, hoping that she will learn the system before making any drastic changes, and realise that things look very different from the inside.
One retired Supreme Court justice tried to sum up the prevalent atmosphere: “What do they want us to say after her reflections on the legal system? A hostile minister was appointed the first place. They are inviting a fight.”
The judge, who is greatly familiar with the legal system and has held many senior positions within it, added emphatically: “If she acts in accordance with her comments in the past, she will cause serious damage.”
As a Knesset member, Shaked supported several bills to restrict the power of the Supreme Court. At the same time, she wants to enact legislation that would allow the Knesset to deny the Supreme Court the right to overturn laws. She repeatedly came out against the system for appointing judges, and supported changes to the composition of the committee that does so.
As justice minister, Shaked will head both the Ministerial Committee on Legislation and Judicial Appointments Committee. At a legal conference last year, Shaked said: “My current mindset is that there is no balance between the legislative and judicial branches. There is judicial supremacy over the executive and legislative branches. The authorities elected by the public are unable to fulfill their purpose and the will of the people.”
A state prosecutor also noted the concern within the judicial system: “It’s an appointment that is a political concession made during the formation of the coalition, but it is much more than that. It’s an appointment that can cause serious damage Israel’s position as a democratic state in the eyes of the world.
“Even if Shaked does advance measures and legislation that are not held up to ridicule, even they change the Judicial Selection Committee and the appointments are still fair, even if they legislate the clause (to bypass the High Court – AM) but barely use it, the reputation as the most advanced and enlightened legal system in the world will shatter, and as a country that faces international criticism every day, every Israeli should be worried.”