Is Israeli High Court’s independence at risk?

In October 2013, only a few months after the establishment of Prime Minister Benjamin Netanyahu’s third government, Knesset members Ayelet Shaked (HaBayit HaYehudi) and Yariv Levin (Likud) submitted a series of legislative initiatives to the Knesset. The bills were designed to weaken the power of the Supreme Court and halt the court’s leanings toward judicial activism. Shaked and Levin’s package of bills were supposed to shake up the Israeli judicial system in order to make a major change. These bills included a change in the composition of the Judicial Selection Committee (giving the High Court one representative at the committee instead of three), limits on the High Court’s authority to disqualify bills and the re-legislation of bills it has disqualified. In addition, one of the bills aimed to task the Knesset with the responsibility for choosing the president of the Supreme Court. Traditionally, the position of president was always given to the most senior member of the serving justices.

For Levin, the move was part of his activism to limit the power of what he feels is a left-leaning High Court. In 2011, Levin tried to advance a bill that would subject all judges to a Knesset hearing before they could be appointed to the Supreme Court. Neither round of legislative attempts was successful, but the issues behind them still hover over the Knesset and the judicial system.

These legislative initiatives, which at first seemed marginal and populistic and were sharply challenged even by Likud officials such as Dan Meridor and Benny Begin, eventually morphed into a key agenda. This happened not only because Levin was appointed minister of internal affairs in 2015 and Shaked became justice minister and chairperson of the Judicial Selection Committee. Instead, it mainly happened as a result of the unleashing that has reigned in many spheres of the political system. For example, there is no one in the coalition who has the role of “defender of the rule of law.” True, Kulanu Chairman and Finance Minister Moshe Kahlon took this role upon himself, but his lack of involvement in these processes shows us that he is not the man to halt the tidal waves that have already reached the doors of the High Court.

Last October, Shaked tried to advance a bill that would revoke the veto power of the Supreme Court justices in their appointment process. This attempt led to a bitter argument between her and Supreme Court President Justice Miriam Naor. Naor sent a letter to Shaked, blaming her for “placing a gun on the table.” This background information is important in understanding the confrontation between Naor and Knesset member Robert Ilatov (Yisrael Beitenu), a member of the Judicial Selection Committee. This clash was reported Dec. 14 in the Yedioth Ahronoth newspaper.

The argument erupted after Ilatov demanded that the politicians in the Judicial Selection Committee be permitted to meet with the judges before they are appointed so “as not to be [merely] rubber stamps.” Naor fumed and made it clear that this was a red line as far as she was concerned and would not allow it. She said, “I must protect the judges from politics.” Shaked was also present at the meeting, and her statements show that she supports Ilatov’s position.

Most likely Naor's strong statements were made as the backdrop of Knesset member Nurit Koren’s statements (Likud); Koren is the second representative of the Knesset at the committee who was also present during the same meeting. Last September, Koren made a visit to the Netiv Ha'avot neighborhood in the Gush Etzion settlement (West Bank), following the decision of the High Court to demolish several illegal structures there. In a conversation with Likud activists on the site, the Knesset member boasted that the Likud will soon change the composition of justices on the High Court to conform to the party’s outlook: “In the coming year we are changing five positions in the High Court. One Arab has to be elected, and I'm told that one must be Sephardic. I said, 'Forget about the one Sephardic judge, I want people with our outlook.' Until now they appointed people with their outlook; now they will be from our camp.”

These unrestrained barbs, lacking minimum respect for the judiciary and uttered by a member of the Judicial Selection Committee, are no less than scandalous — even without connection to a specific political position. But Koren’s words were not uttered in a void. Instead, they are part of the overall atmosphere in the right following several judgments rendered by the High Court on the evacuation of houses in the West Bank. HaBayit HaYehudi Chair Naftali Bennett termed the Netiv Ha’avot verdict as “very severe.” In another incident in 2015, faction member Moti Yogev suggested sending a bulldozer to destroy the court (instead of bulldozers destroying Beit El settlement buildings, according to court order).

The verbal assaults on Naor, who grew up and still lives in a right-wing milieu, raise uncomfortable feelings. Miriam Naor’s mother had been a member of Etzel (a far-right paramilitary group that broke off from the Haganah in pre-state Palestine ["pre-state Palestine” refers of course to the British mandate before Israel was founded]). Miriam’s husband, professor Aryeh Naor, is the son of two Etzel members; Aryeh had served as a Cabinet secretary under late Prime Minister Menachem Begin. He even tried to run for a spot on the Likud list. So if Miriam Naor is a red flag for the right, who will ever pass the Koren and Ilatov gauntlet?

The clash between Naor and Ilatov, with Shaked’s backup and Koren’s cheerleading, reveals the extent of alienation between the right and the judicial system. All this is combined with an overall atmosphere of incitement against the left, led by Netanyahu with his high-level ministers as partners. In this atmosphere, if the leftists are traitors, then the High Court justices are their collaborators. As Bennett tweeted Sept. 1 after the Netiv Ha’avot High Court ruling, “The extreme left has despaired of persuading people to establish a Palestinian state in Judea and Samaria. So, it has bypassed public opinion by using the legal system as a tool to enforce the policies of the minority on the majority. … When the High Court helps them, it erodes public trust in the judiciary.”

Accusations of “rule-of-law gang,” as an elitist minority that takes upon itself disproportionate power in running the state, and about the lopsided political composition of justices in the High Court, are not new. High-level jurists like former Justice Minister Daniel Friedman uttered these allegations, and they are important. When these claims are presented in a well-reasoned manner, they challenge the current system and improve it. What has changed lately is the aggressive tone, the disrespect and lack of statesmanship on the part of the highest level of politicians vis-a-vis the judiciary leadership. Israel has no constitution. The High Court of Justice is well-known in the world as an institution symbolizing the robustness of Israeli democracy; it is an institution that protects minority groups, without political considerations. However, nowadays it is clear that the red line has already been crossed. All the signs show that the political and public atmosphere is ripe for infringing on, and restricting, the powers of the High Court of Justice vis-a-vis the politicians. President Naor’s struggle is only rearguard action.