Rule of law: The mystery of Miriam Naor

As Asher Grunis leaves the stage, the debate on judicial intervention and whether the new chief justice will be for or against it has been reignited.

MIRIAM NAOR (photo credit: Courtesy)
(photo credit: Courtesy)
Supreme Court President to-be Miriam Naor is somewhat of an enigma.
No one places her firmly as a follower of Aharon Barak, one of her predecessors and the symbol of the more judicial activist and intervention school in Israel.
But no one places her clearly as a follower of outgoing Supreme Court President Asher D. Grunis, the symbol of formalism, or limited judicial intervention, either.
Dorit Beinisch, who followed Barak was clearly seen as continuing his ideology and Grunis as a clear break.
The fact then that there is such an unsettled debate about Naor speaks a-thousand words already.
Naor officially replaces Grunis on January 18, concluding his reign, which dates back to February 2012.
One reason Naor is a mystery is that, while universally renown for her professional legal skills, she has kept a very low profile despite being on the High Court for 14 years and being Grunis' deputy since May 2012.
Naor was born October 26, 1947, which at age 67, will give her slightly less than three years leading the court.
Notably, under rules in effect until just prior to Grunis taking over, rules changed by a right-wing political push, Naor would have taken over in 2012 and had twice as long a reign. Naor was viewed as a prodigy even at a young age and after her service in the IDF, obtaining her law degree from Hebrew University in 1971 and working in the State Attorney's Office from 1972-1979, was appointed as a Jerusalem Magistrate's Court Judge at the nearly unheard of age of 33 in 1980.
Naor was the youngest judge in Israel at the time.
She moved up to the Jerusalem District Court in 1989 and the Supreme Court 11 years later.
As a district court judge, Naor made a name for herself in convicting and sentencing Shas Party founder Aryeh Deri and sentencing the heads of a number of banks to prison with heavy fines for economic crimes.
In trying to compare Grunis and Naor and place Naor more generally on a range of issues which the Supreme Court typically handles, the Jerusalem Post spoke to a wide range of politicians, NGOs, experts and ex-judges from both the left and the right, both on and off the record.
Some decisions discussed by many of those interviewed in which Naor voted for annulling laws and was viewed as more activist included: two votes against the state's African migrants policy (the second in which the court was split), the old Draft Law, which permitted paying state funds to Haredi yeshiva students who did not serve in the IDF and a range of rulings ordering the removal of settler outposts.
Some decisions in which Naor was viewed as voting with the majority in a more formalist mode in upholding Knesset laws, included: the Acceptance Committees Law, governing acceptance to live in certain communities (in a split 5-4 decision, making her the key swing vote), the Nakba Law, blocking Palestinian family reunification and preventing Gazan Palestinians from filing civil damages claims in Israel (though the Barak court had allowed something similar) and a law permitting Haredi schools to maintain their school curriculums without teaching subjects viewed as core in state schools.
But before diving back into the judicial nuances of Naor and Grunis, it is important to frame the most up-to-date playing field.
This field can be symbolized by the competing ideologies represented by justice minister Tzipi Livni, who recently vacated her post, defending the court's current balance of when it intervenes and annuls Knesset legislation, vs MK Ayelet Shaked (Bayit Yehudi), pressing to substantially reduce judicial intervention.
Many other officials weigh in on the issues and, though mostly low-profile behind the scenes, even Prime Minister Binyamin Netanyahu, has views on the court.
But Livni and Shaked are some of the more vocal and knowledgeable politicians on opposite sides of the spectrum.
Livni talked to the Post about what she referred to as two "connected struggles and points of clashing" in the judicial arena, over what should be the "basis of our lives" in the state.
She said that one flash point is "whether the rabbis or the High Court" decide what is the law.
Livni placed some of the more extreme members of the religious community in one camp following the rabbis; and most of the country, including herself, following the High Court.
Another flash point, said Livni, was between most of the country and "the extreme right-wing, with their concept of the state's Jewishness overpowering its democratic character." The former justice minister added that, "even in the current Knesset, Bayit Yehudi and some nationalists in the Likud" had tried to "change the balance more to focus on the state's Jewishness" with a reduced emphasis on "equality." Livni said she believes in "equality as a value" and not just something that she is "giving into for democracy." She said that "nationalists believe the court can't annul laws, and that there should not be a constitution." Ironically, noted Livni, in the past she had sometimes clashed some with Aharon Barak's activism believing he was "losing the public's faith." But in the current environment she has found that it is most important to "defend the High Court from changes trying to change how judges are selected and from limiting its powers." Despite several questions, Livni refused to speculate about the differences between Grunis and Naor, preferring to be generally supportive of the High Court and of Naor's professionalism as a judge.
She added she was comfortable with different views existing on the High Court.
Shaked took a polar opposite view of the court in her talk with the Post.
Regarding Grunis and Naor, she said she was unsure of what the differences would be.
Most importantly, she believed that Knesset members, as representatives of the public, need to have a bigger influence on selecting judges and that the High Court's powers to annul laws needed to be checked by legislation.
Without those measures, she said that even Grunis - which the right-wing had had high hopes for - while "slightly less activist," had failed to change what she viewed as the problematic activist direction of the court.
Shaked said that even under Grunis the court had annulled laws, including: the old military draft law (eventually replaced by the new law for integrating Haredim into the army), the funding yeshivot law (cutting funds to yeshivot whose students were not doing military service while the Knesset was working on the new law) and twice the Illegal Infiltrators Law (the state's African migrant policy of detaining thousands of migrants to try to encourage them to "voluntarily" self-deport.) She also noted that for the Illegal Infiltrators Law, Naor was disturbingly, in her view, in the majority opinion striking down the law, leaving Grunis in the minority.
Pressed, Shaked admitted that under Grunis "there was slightly more restraint" by the court in intervening to annul Knesset legislation than under Barak, such as with the Acceptance Committee Law petition.
In that case, the court upheld a law which critics said allowed towns to quietly discriminate against Israeli-Arabs, denying them from moving in, with a 5-4 vote - with Grunis and Naor both in the majority.
Overall she said, Naor might be similar to Grunis and slightly less activist than Barak, but still too interventionist by her standard.
Asked if the court should completely lose the power to annul laws, Shaked said she did support the court's right to annul laws in extreme circumstances, such as a blatantly racist law.
But asked for an actual example where the court annulled a law which she supported, she was unable to think of one.
Shaked justified her critique of the High Court's intervention, saying that the Israeli court's intervention was unique.
For example, she said that the US Supreme Court is activist, but that their judges are chosen more by political leaders and that in England, while judges are not chosen by political leaders, as in Israel, the court cannot annul laws by itself without referring issues back to the parliament.
In other words, Shaked said the Israeli court was unique in that it could both annul laws on its own and had no political involvement in judges' selection.
Livni rejected the critique calling it too much of a theoretical construct, saying Israel has a unique need for judicial independence and intervention.
She said that unlike the US and England, Israel has no constitution in the first place to protect minority rights and hold back waves of populist legislation pushed by the abnormal power of small sectoral parties.
She said that "maybe if we had a constitution" she might feel that there could be more restraint on the High Court.
But her problem with those in the Bayit Yehudi camp was she believed they want a restrained court and no constitution, so they can ignore principles of equality when they wish. Getting into some more specific issues, Hassan Jabarin, Director of Adalah – the Legal Center for Arab Minority Rights in Israel, on the left end of the spectrum said that the main "difference between Grunis and Naor was that Grunis is a formalist with an agenda and Naor is a formalist with no agenda." He added that, "Grunis is against the right of human rights organizations to stand before the High Court of Justice, and therefore, in certain cases, he fined them with court costs, something which created a chilling effect on free speech. In contrast, Naor did not take, and we hope she will not take, similar steps." On the other hand Jabarin also saw both Grunis and Naor as problematic in not intervening enough in legislation his organization objected to, stating "the Supreme Court in the era of Grunis approved all of the discriminatory laws against the Arab population." He gave the Acceptance Committee Law and the law blocking Palestinian family reunification, which Naor helped approve, as examples.
Jabarin did give credit to both Grunis and Naor for beating back multiple attempts to disqualify Israeli-Arabs from running for the Knesset, such as with MK Haneen Zoabi (Balad.) On the opposite end of the spectrum, Legal Forum for Israel Chairman Yossi Fuchs criticized Naor as likely being too activist, even if she was less publicly perceived as an activist.
The Forum even viewed the Grunis era as disappointing in insufficiently rolling back undo judicial intervention.
Fuchs said that, "Grunis tried to be the 'responsible adult' in guarding the subtle balance between the governmental branches, but Grunis was a minority in a court where the majority was activist." The NGO continued, "this was most blatant regarding the multiple annulments of the Illegal Infiltrator Law," which left Grunis in the minority on 7-2 and 6-3 votes, nullifying different aspects of the law.
Next, Fuchs said that there was a "warning light" regarding Naor since she was in the majority in annulling the state's migrant policy twice (though on the left some felt the court was obligated to nullify the policy and took far too long to do so.) He said it was disappointed that she likely "would not bring about a change in direction and reduce the interventions of the court" and that she ignored Grunis' warning not to use "unconventional weapons" in legally directly confronting the state's democratically elected legislators.
"What was is what will be," said the Forum.
Another issue which the Forum works hard on, though it is only occasionally in the limelight, is the rooting out of unfit judges.
The Forum successfully revealed a transcript of the Judges Selection Committee where Grunis called certain judges "ticking time bombs," but where there was no indication that he was moving to remove them immediately.
It said it was disappointed that Grunis had not more aggressively removed such judges, with a number of judges later being forced to step down after their scandals broke into the media.
The NGO said that it hoped Naor would finally take the issue by the horns to restore public faith in the courts, but was not optimistic.
There are also groups who did not stake out as aggressive a view of the two justices.
The Movement for the Quality of Government in Israel (MQGI) and Citizens for Good Governance and Legal and Social Justice (OMETZ) both focused on the unprecedented move by Grunis at the start of his term to fine human rights groups and NGOs for filing petitions with the court between NIS 15,000-45,000 where he found the petitions superfluous.
Like Adalah, they called this new signature Grunis policy problematic for chilling NGOs important role of defending minority rights and wider issues like oversight of state investigations of scandals.
For example, OMETZ pointed out that it had been fined by the court for daring to petition for a wider criminal investigation into the Harpaz Affair, only for Attorney-General Yehuda Weinstein to later voluntarily reverse course and order such an investigation, but without the court ordering OMETZ to get reimbursed.
On the other hand, MQGI said that closer to the end of his term, even Grunis' desire to deter NGOs from filing petitions by fining them seemed to have decreased and no one expected Naor to issue fines as Grunis had early in his term.
In another case which was less noticed internationally but had a huge on-the-ground impact in Israel, the High Court in a split decision intervened to fire three mayors only weeks before elections, who were indicted for corruption, but not yet convicted.
The court fired the three mayors, Shlomo Lahiani of Bat Yam, Yitzhak Rochberger of Ramat Hasharon and Shimon Gafsou of Upper Nazareth, but then the mayors were reelected weeks later (though even later two were convicted and permanently removed from office, with the third case still pending.) In his minority dissent against firing the mayors, Grunis argued that even if it would be better from the "perspective of the public" if the mayors would have disqualified themselves or the voters would not vote for them, from "a legal perspective" since "the elections are imminent and will be held in a short time, there is no place for the court to put itself in place of the voters." In contrast, Naor said not only that in "an ideal world" the mayors would have disqualified themselves or the voters would act responsibly and not vote for them, but even from a legal perspective "in light of the severe harm to the purity, values and foundation of democratic rule and the rule of law" she would not allow public servants to gain "immunity" from removal from office – which could encourage public corruption.
Perhaps this last case best sums up the difference between Grunis, Naor and Barak.
Barak proudly inserted the court into what he viewed as injustice and bad societal outcomes and Grunis actively avoided intervening, preferring to let the Knesset or the voter decide the issue, even if he thought they were mistaken.
In the unpredictable middle, Naor likely has a first instinct to defer to the Knesset or the voter, but will press forward and intervene where she feels there will be severe harm to democracy and the rule of law without intervention.