The Supreme Court, Jerusalem.
(photo credit: Wikimedia Commons)
With no constitution, Israeli politicians’ disregard for checks and balances and attempts to restrict media criticism making the country’s democracy fragile, “without a strong Supreme Court there would be no democracy,” former Supreme Court justice Dalia Dorner told The Jerusalem Post on Tuesday.
In a wide-ranging interview following the recent publication of the book Unrobed, in which Dorner and 12 other former justices are interviewed by a group of law students, she discussed her views on protecting the Supreme Court’s independence, the court’s potential conservative swing, the current prisoner hunger strike and when Israeli law conflicts with international law.
“Israeli democracy is fragile because it has no constitution, no foundation, no checks and balances and politicians can and do just completely change the rules of the game when they want... if there is power, they use it,” she said.
Dorner recounted how “Israel’s political establishment did something very dangerous” with its decision to pass the 2009 Mofaz Law, named for former Kadima party leader Shaul Mofaz, who explored new scenarios of parties splitting and uniting with Prime Minister Benjamin Netanyahu.
She said the law changed the Knesset Basic Law, considered part of its constitutional law pending there being a constitution, simply to fit the moment’s political coalition machinations.
In the face of these challenges and the challenge posed by the many attempts of Israeli politicians to control or intimidate the media, “the most critical institution is the Supreme Court, without which there would be no democracy,” she asserted.
She said that the Knesset should not pass laws “to negatively impact the Supreme Court’s authority,” but rather that it should start doing its job by resolving hard controversies, like the dispute over conversion and who is a Jew, instead of kicking these tough decision to the Supreme Court and then attacking the court’s resolution of issues the Knesset was not brave enough to resolve itself.
“If the legislative branch loves the court, then the court isn’t doing its job,” she added.
Asked about the debate over whether or not the block of four new justices
, pushed through in February in large part by Justice Minister Ayelet Shaked, along with the two expected 2018 appointments, would turn the court to the Right for the first time in decades, she said: “I expect the new justices will be professional and will do their duties according to the law. I wish them the best... I expect they will rule against the government if it violates the law.”
The former justice disputed the narrative that it would be easy to predict that the newly appointed justices would vote conservatively, citing herself and former chief justice Asher D. Grunis as counterexamples to this sort of thinking.
Many might have expected her to be overly deferential to the state on security issues since she came to the court from a long army career, but ultimately she is viewed as one of the court’s more liberal justices.
Likewise, she said that the Knesset changed the law for the appointment of chief justice for Grunis since he was “viewed as conservative.”
Yet, she noted that Grunis did not hesitate from ordering the politically controversial evacuation of the unauthorized outpost of Migron over the objections of politicians who pressed for his appointment, proving that “a judge is a professional person.”
She said that any politicians who think they can turn the court into an extension of their political views “don’t understand what a judge is. If judges become political on the court... then it is just like the Knesset and then you don’t need the court.”
Throughout the interview, Dorner impressed with a range of citations from the Bible and the Prophets to support her version of combining the country’s poles of Judaism and democracy. Regarding judicial independence from politicians, she quoted Deuteronomy’s exhortations to judges of “Do not show bias” and “Do not fear people,” but rather to make judicial decisions based on what is right.
She also warned politicians who want to stack or interfere with the court “that tomorrow another person who thinks the opposite of you” may do the same.
Moving on to the current hunger strike of Palestinian prisoners and the potential controversy of using Israel’s relatively new law to force-feed them, Dorner said, “The Supreme Court said that the law is constitutional. My personal opinion is not relevant.” She specifically added, however, that “the medical association was very opposed to the law.”
Palestinian prisoners in Israel prepare for a massive hunger strike. (Reuters)
Asked about Israel’s controversial policy of demolishing the homes of Palestinian terrorists, which pits Israeli law against what most say is a clear prohibition under international law, Dorner said, as a matter of fact, that “where there is a conflict between Israeli and international law, we decide according to our law.”
She said that she “always tried to use an interpretation to minimize contradictions” and cited a recent Supreme Court decision that encouraged the reconsideration of Israel’s home demolition laws.
But she also implied that it is a judge’s duty to do the best they can in a system, provided that the system as a whole is just.
Dorner still clearly believes that Israel’s democracy is worth preserving.