Has Ohana’s attack on the High Court poisoned the well? - analysis

Shaked stepped back from the brink, both sides compromised on a list of candidates that had both liberals and conservatives, and the two maintained a politically tense but respectful relationship.

By
June 14, 2019 02:29
4 minute read.
Justice Minister Amir Ohana speaks at the Israeli Bar Association on June 10, 2019

Justice Minister Amir Ohana speaks at the Israeli Bar Association on June 10, 2019. (photo credit: YOSSI ZAMIR)

In November 2016, then-justice minister Ayelet Shaked and then-Supreme Court chief justice Miriam Naor came close to open war.

Naor accused Shaked of putting a loaded gun on the table in the negotiations over appointing four new justices to the Supreme Court after the justice minister threatened to pass a new law allowing her to essentially pick the new justices without the court’s input.

Shaked stepped back from the brink, both sides compromised on a list of candidates that had both liberals and conservatives, and the two maintained a politically tense but respectful relationship.

In contrast, newly-minted acting Justice Minister Amir Ohana may have poisoned the well in his relationship with the Supreme Court, Attorney-General Avichai Mandelblit and the state prosecution with his unprecedented attack Wednesday on all of them.

Shaked always advocated passing Knesset laws to empower the legislative branch to veto Supreme Court decisions, and this was a source of tension between the sides.

But Ohana leaped forward way past Shaked’s position on Wednesday, advocating disobeying some Supreme Court decisions even in the absence of the Knesset having passed a law authorizing such a veto.

While to non-lawyers this might just seem like semantics, the legal establishment understood Ohana’s statements as undermining a basic building block of the rule of law: that while people can agree to disagree in their thoughts, everyone must obey the court when it comes to action.

Shaked’s idea was to follow a legal process to change the formal legal balance between the legislative and judicial branches.

Some might criticize this change in balance. But as long as it follows the required legal process, it is within the idea of the rule of law. The Supreme Court often bows it head to laws that individual justices may not be enthusiastic about.

It also goes beyond semantics because passing such laws to alter the balance requires acting in the public eye with all of the scrutiny and debate that implies.

If the public does not like the change, the they will have heard about it enough from Knesset committee debates that they can vote those political actors out who made the change.

Yet, disobeying a court order without passing a law that limits court authority is entirely beyond the rule of law.

It avoids the annoyance of public debate – which each time has deterred the Knesset from passing a law to veto the courts – and merely requires grabbing new non-legal powers.

It also potentially signals to citizens and other political officials that obeying the court is optional, and that laws have become a free-for-all if you are powerful enough to avoid law enforcement coming down on you.

Naor and Mandelblit never directly attacked Shaked as acting irresponsibly the way that the attorney-general and Esther Hayut, Naor’s successor as chief justice, attacked Ohana on Thursday.

With all of the criticism from the coalition of the legal establishment, most legal officials dislike airing disagreements in public and prefer to set a tone of giving a justice minister and other ministers respect, even if they might rule against them sometimes on technical grounds.

Their departure from this approach and their decision to actually attack Ohana says volumes about how harmful they feel his comments were.

The new justice minister seemed to realize that he may have gone overboard, clarifying three hours after his interview aired that he would nearly always follow court decisions.

But this was clearly not enough for the legal establishment, which belted him even after the clarification.

Strikingly, at press time on Thursday, no one from the Likud or the Right had come to Ohana’s defense.

It is unclear if they purposely left him out to dry or simply decided that his interview was a political mess and that, in election season, the best thing they could do was move on.

Incidentally, Ohana’s silent treatment from the coalition is much better than the treatment URP MK Bezalel Smotrich got after his recent interview calling for a country run by halacha (traditional Jewish religious law), which was roundly condemned by a range of Likudniks.

It is also possible that no one defended him because he is only the acting justice minister.

Many still expect Likudnik Yariv Levin to be given the permanent appointment as justice minister once a new government is formed following the September 17 general election.

And once Mandelblit likely issues a final indictment against Netanyahu, perhaps in December, all bets may be off about the justice minister-legal establishment relationship.

So the real hard questions about what impact Ohana’s statements will have on the relationship between the political echelon, represented by whoever is justice minister, and the legal establishment will need to wait until that government is formed and Netanyahu’s corruption cases are decided.


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