Netanyahu backs Shaked in criticizing High Court over gas deal decision

Justice Sohlberg: “Instead of ‘sit and do not act’ in order to be on the side of safety, it is better to “rise up and act’ as the law stipulates.”

April 5, 2016 22:32
2 minute read.
 Prime Minister Benjamin Netanyahu (C) attends a meeting of the Likud party

Prime Minister Benjamin Netanyahu (C) attends a meeting of the Likud party in the Israeli parliament in Jerusalem. (photo credit: REUTERS)

Prime Minister Benjamin Netanyahu backed Justice Minister Ayelet Shaked on Tuesday, without explicitly mentioning her, following her Monday onslaught on the Supreme Court over its decision nixing the natural gas deal.

In response to Shaked’s remarks, some critics called for her to retract her comments or even resign.

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At a speech at the cornerstone ceremony for the new National Library in Jerusalem, he said that “a strong, stable and healthy democracy, is not terrified of its guardians. It manifests the will of the nation, and guards the right of the individual, the balance between the branches and the separation between them.”

“I respect the court and the judges from personal acquaintance and due to their position, and I respect their decisions.

Still, it is the full right of everyone, also for me as the person who bears the responsibility to lead the nation, to criticize these decisions,” Netanyahu added.

“In a strong democracy as ours,” continued the prime minister, “there is no institution which is above criticism.

Among our neighbors, they do not criticize decisions, not of the courts and not of the government.”

The debate over judicial activism was reignited last week when the Supreme Court, sitting as the High Court of Justice, struck down a major piece of the government’s gas blueprint, a result which meant declaring the whole thing unconstitutional.

Soon after, Netanyahu called the ruling – which hobbled one of his flagship initiatives – into question with some moderate criticism. This was followed by Shaked’s latest, very unusual, attack on the decision.

Shaked’s attack provoked a wide defense of the court and some counterattacks by Attorney- General Avichai Mandelblit, State Comptroller Joseph Shapira, opposition leader Isaac Herzog and MK Michael Oren (Kulanu), with MK Shelly Yacimovich even calling for Shaked’s resignation.

Though Netanyahu did not mention Shaked by name, his comments on Tuesday were clearly a response to her and especially to her critics.

Meanwhile, on Tuesday, Supreme Court Justice Noam Sohlberg, who had protested against the disputed decision, praised the idea of the court refraining from blocking major governmental initiatives.

Sohlberg, speaking at the Israel Bar Association conference in Eilat, tried to re-frame the debate over judicial activism.

He said that activism should mean courts have the courage to let the government push forward with bold new policies, as opposed to blocking new policies out of fear of acting when confronted with new realms and uncertainties.

“Instead of ‘sit and do not act’ in order to be on the side of safety,” talking of the current norms, “it is better to ‘rise up and act’ as the law stipulates,”.

Explaining his stance, Sohlberg said that “when there is a legal doubt it is easier to hide behind bans than allowing the state authority to proceed with its actions.”

Sohlberg’s explanation references his position in the gas deal decision, that instead of striking the deal, the court should have given the government guidance about implementation.

The judge has also anticipated counterattacks on his argument that might claim that this kind of policy might lead to an opening for public corruption. Referring to this possible argument, he added that “legal intervention in the political process is not the main issue, but rather it is internalizing principles among governmental clerks,” which can only be done by allowing the executive authority to act, even if the judicial branch provides guidance, and not by a total veto.

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