Hands off the High Court

Shaked is not the first justice minister to dispute the court’s interpretation of its powers.

Ayelet Shaked (photo credit: NOAM MOSKOVICH)
Ayelet Shaked
(photo credit: NOAM MOSKOVICH)
Justice Minister Ayelet Shaked stepped up her attack on the High Court of Justice this week, when she took advantage of her appearance at the Israel Bar Association conference in Eilat to slam the court for its recent decision declaring a crucial clause in the government’s natural-gas framework to be unconstitutional.
The argument over the purview of the court and the issue of judicial activism is of course a legitimate discourse and one that has been debated extensively. Shaked is not the first justice minister to dispute the court’s interpretation of its powers. Former justice minister Daniel Friedmann has also described an anti-democratic legal revolution led by former Supreme Court president Aharon Barak in the 1980s and makes a pervasive argument why not everything is justiciable and why cabinet decisions should not be ruled null and void on the grounds of “unreasonableness.”
Yet, Shaked, both as justice minister and previously as a Bayit Yehudi MK when she promoted a bill to circumvent the High Court and limit its powers to annul Knesset laws, has constantly and consistently attacked the institution.
Her Bayit Yehudi faction has been at the forefront of the assault on the High Court.
MK Moti Yogev last year said “the shovel of a D9 bulldozer should be sent to the High Court” after it ruled that the Dreinof buildings in Beit El should be demolished, while his fellow Bayit Yehudi MK Bezalel Smotrich called the ruling a nail in the coffin of the court.
Likud MKs, too, have participated in the charge. Tourism Minister Yariv Levin, a lawyer who is said to aspire to Shaked’s job, said the “judicial system prevents the government and the security forces from doing their job,” after the court froze the demolition of the family homes of nine perpetrators of terrorist attacks pending appeal.
Likud’s Minister of Culture Miri Regev has a long history of statements attacking the court, from “the High Court is alienated from the Israeli public and settlements” to “the High Court works for the infiltrators.”
The list goes on.
It is worth noting that while the High Court struck down the stability clause of the gas framework, it left other clauses intact and in fact paved the way for the deal to go through.
Why then did Shaked accuse the High Court of going beyond its mandate of “exercising authority with responsibility” and ask provocatively why the court had not struck down “the right of the government to sign onto the Oslo Accords.”
After all, as opposition leader Isaac Herzog noted, it is the justice minister who is responsible to guard and defend the separation of powers and the independence of the court.
One can only conclude that Shaked seeks exactly to weaken the powers and the independence of the court, one blow at a time.
Aharon Barak wrote that “the struggle for law is unceasing. The need to watch over the rule of law exists at all time. Trees that we have nurtured for many years may be uprooted with one stroke of the ax.”
But democracies, like trees, do not fall with one fell stroke. Rather they are gradually eroded as their substance is removed, turning them into democracies that are merely formal – and illiberal in nature.
In their book The Fate of Young Democracies, Ethan Kapstein and Nathan Converse note the inability to constrain the executive branch of power as one of the common factors that lead to the failure of democracies.
Israel may not be that young of a democracy any more, but neither is it an old and well-established one.
To paraphrase Barak, we cannot take democracy’s continued existence for granted and we must retain a Supreme Court that can protect our basic values against those who challenge them and limit the power of the majority.