Separation of powers: 70 years of balancing Supreme Court, Knesset

Ex-justice Elyakim Rubinstein gives his verdict to the ‘Post.’

RETIRED SUPREME Court Justice Elyakim Rubinstein at his office in the High Court building in Jerusalem last month. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
RETIRED SUPREME Court Justice Elyakim Rubinstein at his office in the High Court building in Jerusalem last month.
Some people can talk history – former Supreme Court justice deputy president, attorney-general and peace negotiator Elyakim Rubinstein is history.
It strikes you the moment you enter his office (retired justices get to maintain their offices in the court building). Photos of handshakes with top international leaders or of key peace events at which Rubinstein was present fill the wall. They include photos of the Jordan peace agreement signing, Rubinstein shaking hands with former prime ministers Yitzhak Shamir and Yitzhak Rabin as well as with former US secretary of state James Baker.
Rubinstein is a serious man who embodies Israeli history, but he also has a soft side, and one of the pictures is a cartoon drawing of him juggling.
He is also the right person to review 70 years of balancing Israel’s legislative branch, the Knesset, with its judicial branch.
The judicial branch was clearly less powerful than other arms of government when the state was founded. In the court’s earliest days, in the winter of 1949, the justices nearly froze in their chairs due to a shortage in heating oil. In those days the building’s electrical system could not accommodate electrical heaters. There was also no law library or way to confirm legal citations.
The Supreme Court, Jerusalem (Wikimedia Commons)
The Supreme Court, Jerusalem (Wikimedia Commons)
Legal historians on the liberal end of the spectrum, like Pnina Lahav, wrote, “More stinging was the wind blowing from the government. Revolutionary times usually inflate the significance of the executive branch. Israel’s leaders had good intentions about... the rule of law. But it is one thing to appreciate the theory... The executive rejected liberal principles as soon as they appeared to contradict necessity.”
Lahav wrote that a judicial commission headed by Justice Simon Agranat cleared the police of failing to find the assassins of UN diplomat Count Folke Bernadotte, probably to assuage David Ben-Gurion’s worries about confronting the assassins – widely believed to have been members of the Stern Group (also known as Lehi) – and a desire to avoid an international scandal.
Ben-Gurion backed Justice Minister Bernard Joseph when he attacked the judiciary in 1952 for giving sentences that were “too lenient.”
A Knesset bill providing for the judiciary’s independence was not passed until 1953.
Rubinstein sees those days differently. He said the early days of the court “were possibly harder than those who followed them, since they [the later justices] were already able to look the state’s leadership ‘straight in the eye’ with no difficulty.” In contrast, Rubinstein said the first generation of justices were a group of unknown professors and lawyers facing up to Israel’s founding father.
Despite that challenge, he said the Supreme Court showed independence and a readiness to stand up for the law and human rights with its famous 1953 Kol Ha’Am opinion.
In that decision, the court stood up to Ben-Gurion and invalidated his government’s order to temporarily close the newspaper of Israel’s Communist Party after the prime minister found that its criticism of the government and siding with communist values had gone too far.
But invalidating one narrow government order was a far cry from claiming broad judicial review powers to conceivably invalidate any law passed by the Knesset deemed as unconstitutional.
The first real hints of the Supreme Court taking its place as an equal branch of government, and in some areas superior to the other branches, Rubinstein said, was the 1969 Bergman case.
In that ruling, the court invalidated a law that limited public financing in election campaigns to political parties represented in the Knesset. The court explained that the financing law contradicted a prior Knesset quasi-constitutional Basic Law which guaranteed equal elections.
The Supreme Court in Jerusalem hearing a case, August 19, 2015 (Reuters)
The Supreme Court in Jerusalem hearing a case, August 19, 2015 (Reuters)
Rubinstein said the 1990s Basic Laws ushered in a new era.
WHEN YOU read the Basic Laws for Human Dignity and Freedom and for Freedom of Employment, “In my view there is no way to read them but... as a basic law that is a source of constitutional review,” Rubinstein said.
He said this is so obvious from the text of those basic laws that “I don’t know what the Knesset members thought at the time... but judicial review is obvious from the language... You don’t need to be Aharon Barak. You can be a first-year law student. I don’t say that, God forbid, to put down Aharon Barak – just to show the clarity of the matter.”
“Then came the 1995 Bank Mizrachi case. My wife argued for the government. She didn’t speak to me – we just met occasionally.She was just working day and night to prepare for the argument,” he said.
Rubinstein described the decision that set the expanded parameters for judicial review: “This few hundreds of pages case could be written in 20 pages, but I could understand why” Barak wrote much more about a topic that “became... a respectable constitutional case.”
The Basic Laws placed limits on how much the government could deprive people of their freedoms, he said. They stipulated that laws needed to have a “fitting purpose – 600 times in my judgments I mention common sense!” On the flip side, he said, the Supreme Court still “must respect the Knesset. You don’t jump and do away with a law easily.”
He cited a number of cases in which he said the court took a backseat for years, or tried to help coax rival sides to resolve their differences on such issues as Haredi conscription and conversion, out of court.
Sometimes, he said, the justices would literally plead with the government to resolve issues, especially those pertaining to the rights of non-Orthodox movements. But often the government stubbornly avoided resolving such matters.
Rubinstein said it was unfair that many people “start yelling that the court is interfering and acting. I do not use this terminology of activism... the court is just looking at each case on its own merit.”
At the same time, he recognized that former Supreme Court president Simon Agranat “mentions predilections everyone has. Everyone has a background, but at the end of the day, you decide the case” based on the evidence at hand.
“I assume your background... where you come from... has contributed to your psyche... but you decide the case by seeing the issue and the person[s]” involved.
“One should remember and underline the caution with which the court is dealing with these cases. There is no rush or wish to... [strike down acts of] the Knesset or the government. There really isn’t,” Rubinstein added.
The former justice also does not agree that a chief justice dominates the court.
Many conservatives and advocates of enhancing the powers of the Knesset over the court see Aharon Barak as their main adversary.
Rubinstein, viewed by many as a moderate-conservative, said people “do him injustice to make him out as left-wing... There is a lot of exaggeration,” about how liberal he is. Rubinstein pointed out that even as Barak is liberal, he pointed out how Barak was a party to decisions declaring the West Bank barrier legal and endorsing targeted killings as legal – two major rulings criticized by human rights groups, and which showed responsibility and sensitivity in the area of national security.
There is a lot of exaggeration and assumptions that he is a liberal.” He pointed out how Barak was a party to decisions declaring the West Bank barrier legal and endorsing targeted killings as legal – two major rulings criticized by human rights groups.
“Barak does not need my defense. He is in a league by himself,” he said, noting also how positive views overseas of Barak and of the Supreme Court and its independence are assets for the country.
While legal academics know that Barak’s predecessor, Meir Shamgar, issued a wide range of liberal rulings, he is not as widely criticized by those who advocate a less interventionist court.
“Shamgar was perceived as more conservative because he came historically from Etzel circles, spent four years in Africa incarcerated by Great Britain,” and was a better operator in relating to key groups, said Rubinstein.
But he pointed out that Shamgar headed the court during the first half of the Bank Mizrachi case hearings, which led to a more systematic widening of judicial review.
Retired justice Elyakim Rubinstein (Judicial Authority of Israel/Wikimedia Commons)
Retired justice Elyakim Rubinstein (Judicial Authority of Israel/Wikimedia Commons)
RUBINSTEIN DEFINED himself as both “liberal” and “a religious Zionist” dedicated to both the Jewish character of Israel and as a Jewish and democratic state, and to its security, as well as to human rights and equality within it.
For him, being a religious Zionist justice meant that it is “super vital” to mind the connection with the “national liberation movement of Zionism.
“I am proud to be a Zionist.... The main thing is to be a Zionist and fair court which sits in Jerusalem and not somewhere else that is a universal setting. It lives the life of the nation... and tries to help those in need. It tries to help the government, but is also the guardian of human rights,” he said.
Two areas in which the court intervened to strike that balance were the West Bank barrier and administrative detention.
Regarding the barrier, the court said, “yes, the fence is appropriate... because the government has an obligation to protect its people.” On the other hand, the court sometimes ordered the state “to reroute it to make life easier for the Palestinians... these things are... balancing between situations.”
In recent years Rubinstein altered the balance of some administrative detention cases – indefinite detention outside standard judicial proceedings – by creating the category of suspending detention for hunger strikers in the hospital.
Until then, administrative detention was approved, shortened or in rare cases, rejected.
Suspending detention created a compromise by which the state could eventually release persons whom it never planned to hold indefinitely, while not needing to have the court annul the detention of a hunger striker near starvation.
“I saw myself as a pragmatic justice – not a purist – solution- minded,” Rubinstein said.
“I am also proud to be religiously inclusive [of non-Orthodox movements] and of modern applications of traditional Jewish law to the Israeli state,” what are known as “Mishpat Ivri.”
Bearing in mind his arguments against categorizing justices as one-sided, does he think Justice Minister Ayelet Shaked will meet her goal of shifting the court in a conservative direction? “I don’t know. I can’t foresee the future. After the destruction of the Temple, prophecy was given to children and fools. I respect Shaked and like her personally.
We sat together on the committee that selects justices and I have an affinity for her.
“I don’t say that someone’s background may not have an influence on their decision- making. There is a poem of [Shaul] Tchernichovsky, that a man is not more than a small piece of a small piece of his own homeland.”
“I can understand... her point of view. Of course, she is entitled to her view and she’s the chair. I don’t think we can exactly predict that this is going to change [the direction of the court]. “It may have an effect. Human beings are human beings. But I don’t think we should hold our breath for major, major changes. Even now, the court is really trying to be cautious.”
Rubinstein added that he thought the idea of litigating about issues of constitutional review has developed over the years and “is now a given. I don’t think that will change,” he said.
Another hot-button issue is whether the Knesset may establish a formal mechanism to override court rulings that strike down a law as unconstitutional.
Rubinstein said he is not against the idea and thought a special majority vote of 70 Knesset members “is reasonable, it is a good number, but respectable and not casual.”
As to those people who want an override vote to require 80 Knesset members, he said the number “is not in the Bible.”
He favors requiring a majority of 70 Knesset members so that overrides would not be done lightly, Rubinstein said.
He is also in favor of Israel adopting a constitution, which he strongly believes is needed to inculcate citizens with a fundamental respect for the law and freedoms.
The conversation concluded by addressing the differing perspectives on Supreme Court-Knesset relations.
Rubinstein, as usual, took the middle ground between the conservative view of former justice minister Daniel Friedman and the liberal stance of legal historian Pnina Lahav.
Friedman has said the court has improperly intervened in Knesset matters since the Barak revolution of the 1990s and has only restrained itself in recent years for fear that lawmakers may reduce the bench’s powers.
“I wouldn’t phrase it this way: I would say generally the court is cautious... No one has the power to... [and] it is not feasible to undo constitutional review,” Rubinstein said.
Regarding Lahav’s narrative that only Shamgar and Barak’s constitutional revolution were bold enough to secure jurisprudence of Israel’s democratic rights when the other branches of government went too far, Rubinstein again demurred. He referred back to his comments of respecting the justices who had to confront Ben-Gurion, and emphasized that the court is a “collective creature” in which a single justice’s ideology may impact things, but “is not decisive.”
Sounding both down-to-earth and poetic, Rubinstein concluded, “Nobody is perfect and the court is not perfect. But if the court hadn’t already been here, someone should have invented it – and it shouldn’t be weakened.”