Netanyahu, Gatekeeper of Israel’s Democracy

The appointment of Ayelet Shaked to the office of the Minister of Justice is a significant development. Months before her appointment, the Jewish Home Party and Shaked in particular strongly disparaged judicial activism and criticized Israel’s Supreme Court justices for imposing their sovereignty over the Knesset by invalidating some of its laws. In the discussions leading up to the formation of the coalition government, the Jewish Home Party demanded that the coalition guidelines include a clause that intentionally weakens the Supreme Court’s power to censure the Knesset, and expressed a desire to resubmit for ratification laws that were previously rejected by the Supreme Court.

For this reason, many people in the justice system have expressed concern that Shaked will emasculate and weaken the Supreme Court. This concern is based on recent statements by Shaked, such as: “My world view and that of many more Knesset members from various parties is that there is currently an imbalance between legislative and the judicial power and that there is a superiority of judicial power over the legislative and executive branches.”

This perception is contrary to the Likud’s historical approach. Legendary Likud leader, Menachem Begin, always bowed his head before the Supreme Court and declared that it is necessary to recognize “the superiority of the justice system.” I remember his famous statement: “There are judges in Jerusalem.” His successor, current Prime Minister Benjamin Netanyahu, also expressed support for the independence of judicial power at the induction ceremony of the new president of the Supreme Court. “A democracy that wants to survive must be strong within and strong from the outside. Therefore, we must continually reinforce the power of the country’s democratic authorities, notably the judiciary power, which must be strong and independent.”

Netanyahu is right. The Israeli justice system has been — and is – highly respected among lawyers around the world. Israeli Courts have been successful at balancing the preservation of the Jewish character of the State and its democratic values and human rights. The Court also manages to strike a balance between political interests of the legislature and the public interest. All its judges have been able to do this without undermining the Jewishness of the State of Israel.

The Supreme Court’s rulings over the years have touched fundamental principles, such as basic human rights, for instance: HCJ (High Court of Justice) 6055/95 Sagi Zemach versus the Minister of Defense, which invalidated a law that allowed a soldier to be detained for 96 hours; HCJ 2605/05 The Academic Center for Law and Business versus the Minister of Finance, which ruled against the construction of a private prison because of the violation of human rights and the principle of equality; HCJ 4124/00 Ornan Yekutiel versus the Minister for Religious Affairs, which rejected the practice of “kollel“ students receiving income support from the State, due to harm to the principle of equality, freedom of occupation, and more.

At the same time, a long series of rulings strengthened the position of Israel as a Jewish and Zionist State. For example: Elections Appeal 1/65 Jacob Yardor versus the chairman of the Central Elections Committee; HCJ ruling 58/68 Shalit versus the Minister of the Interior and official listing of Haifa; HCJ 606/78 Suleiman Tawfiq versus the Defense Minister; HCJ 2072/12 The Women’s Coalition for Peace versus the Knesset, etc.

Undermining the Supreme Court will also create an opening for strong criticism of the prime minister, who is already forced to deal with the continuous international censure of Israel. The last thing Netanyahu needs now is additional condemnation from within. Shaked’s appointment was forced upon the Prime Minister as part of coalition negotiations. The demand to weaken the Supreme Court was also imposed on him. Shaked fills the office of Justice Minister, but Netanyahu can and must prevent harm to the justice system.

Prime Minister Netanyahu must declare unequivocally that he will not allow a change of the status quo and will not undermine the Supreme Court. Correspondently, he must also prevent, by all possible means, the advancement of laws that would damage the status of the Court. Only Netanyahu’s firm stand against pressures from the Jewish Home Party will maintain the independence of the Supreme Court, and thus sustain this essential element of Israel’s democracy.

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The author is the founder of the Jerusalem Institute of Justice, and a member of the International Association of Jewish Lawyers and Jurists.