Changing of the Israeli judicial guard
What sort of bench is retiring Supreme Court President Dorit Beinisch leaving behind?
In keeping with the custom of retiring Supreme Court justices, court President Dorit Beinisch read a ruling that had not yet been made public and which she had chosen personally: a petition against the law preventing low-income earners who own or use a vehicle from receiving income support from the state which, the petition argued, hurts weaker sectors of the population. Unlike earlier, more dramatic rulings she has made, retiring Justice Beinisch was careful this time to choose a subject that would not disturb anyone: neither Jews nor Arabs, neither secular nor religious people. Perhaps only the Finance Ministry and the National Insurance Institute might object to the unanimous ruling by a panel of seven judges, which accepted the appeal, saying the law was unconstitutional.
What sort of court does Beinisch leave behind? No sweeping changes are expected under Grunis. There is one less woman on the court now that Beinisch and Justice Ayala Procaccia have retired and Prof. Daphne Barak-Erez has joined the bench. The number of Mizrahi and Arab justices remains the same, with Justice Uri Shoham taking Edmond Levy's place, and Justice Salim Joubran continuing to serve. The representation of religious justices has also not changed: Justice Noam Sohlberg takes Levy's place, joining Elyakim Rubinstein and Neal Hendel.
Jurists specializing in constitutional law and human rights find it hard to predict the judicial approach that the court, with its new composition, will now take. Unlike other courts around the world that are appointed by administrative branches of government, it is not possible to divide all members of the highest judicial body in Israel into distinct ideological camps. At the same time, it is possible to offer a cautious opinion based on their prior rulings, and point to a relatively more liberal group in relation to conservatives, although in some cases the division is unclear. It has happened that justices identified with the liberal camp have handed down conservative rulings and vice versa.
Justice Uzi Vogelman is a prominent member of the liberal group on the court. In a relatively short period he has handed down decisions on a series of human rights petitions. He revoked the arrangement barring Palestinians from Highway 443, ruling that the IDF commander had exceeded his authority; accepted a petition against the Israel Tax Authority and National Insurance Institute policy of collecting debts by stopping debtors at police checkpoints; led the development of new libel rules in the appeal by Captain R. in his case against television journalist Ilana Dayan; and spoke out against the government's failure to appoint a single woman to the Turkel Commission examining the army's raid on the Turkish flotilla to Gaza. In that 2010 ruling, Vogelman wrote, "It cannot be said that in all of Israel not one woman candidate with the right abilities can be found," and ordered the government to consider the addition of at least one woman to the commission.
Justice Salim Joubran last week voiced a minority opinion, against a majority of eight, which upheld the law granting pardons to Jews convicted during the disengagement from Gaza. Joubran called the law an impingement of civil equality. "The knowledge that one person pays the price for his deeds and another person in a similar situation is not required to borders on an indignity," Joubran wrote, mentioning that those Arabs convicted in the upheavals of October 2000 in northern Israel did not receive any lessening of punishment for the similar acts they carried out for different reasons. Joubran was also in the minority when he held that the Citizenship Law, which prevents mixed marriages of Israeli citizens with people from the occupied territories, should be revoked.
The liberal camp also includes justices Isaac Amit and Esther Hayut. Amit supported the changes in libel law delineated in the decision on Captain R. He and Hayut also supported the appeal by the Jerusalem Open House asking the municipality to fund the gay community center's activities. "It is difficult in this context to be content with the fact that our law is more liberal than that of our neighbors in the Middle East," Hayut wrote. Hayut was part of the minority view in the ruling on the Citizenship Law, and was outspoken in the decision criticizing the Prison Services regulation limiting inmates' meetings with lawyers.
"It is the right of every person to receive legal services, including the right to meet with a lawyer; the right to legal representation is a basic one, which embodies the freedom to appoint an emissary according to the individual's wishes, and the right to due process," she wrote.
Two of the new justices, Zvi Zylbertal, who was sworn in last week, and Prof. Daphne Barak-Erez, dean of the Tel Aviv University Law Faculty who was sworn in several months ago, are considered to hold great promise in the area of human rights.
In an unusual decision as a magistrate's court judge, Zylbertal ruled that in order not to place excessive limitations on freedom of speech, the court must examine whether or not the expression actually creates a danger to the proper workings of government - a definition that does not include the offenses of which rightwing extremist Meir Kahane was accused in the past. Zylbertal also ruled that the degree of danger must be proved conclusively, something that was not done in Kahane's case.
A lot has been written in recent months about incoming Supreme Court President Grunis, painting his legal portrait as "conservative." Just last week, Grunis in a sense justified this image when he gave his minority opinion of the petition against the Tal Law, which allows full-time yeshiva students to defer army service, and in effect lets them evade service completely. Grunis reversed his earlier opinion, holding that there was no reason to offer judicial criticism of a Knesset law in which the majority granted extra rights to a minority. "It is an illusion to expect that a judicial decision will bring about the enlistment of the ultra-Orthodox into the army and their entrance into the work force," Grunis wrote. "Socioeconomic changes are likely to bring about the desired result. The court's influence in a case like this is small."
Among the justices associated with conservative rulings are Elyakim Rubinstein, Miriam Naor, Neal Hendel and Hanan Melcer, who all opposed revocation of the Citizenship Law. Naor gave as her reason the argument that a constitutional defense of the right to family life does not apply to the possibility of creating a family in Israel with a foreign citizen. She was one of the judges on the panel that unanimously rejected a petition against the so-called Nakba Law, which would withhold funds from organizations that treat Israeli Independence Day as a day of mourning. And she offered a minority opinion supporting a Prison Services regulation limiting inmate meetings with attorneys.
Of all the most recent appointments, Justice Sohlberg is considered a sure addition to the conservative side. Among his rulings as a district judge is the decision in the libel case of Captain R. that was rejected on appeal to the Supreme Court; the acquittal of three rightwing Kach extremists of disturbing the court during the trial of MK Ahmed Tibi (United Arab List-Ta'al ); and a ruling in 2009 allowing the interior minister to refuse to extend the validity of Israeli citizenship to an evader of army service. District court judge Uri Shoham, who is to be sworn in to the Supreme Court in the coming months, has mainly been involved in criminal cases and is considered a conservative judge.
It is hard to assign justices Edna Arbel and Yoram Danziger to any camp. Arbel was in the minority opinion about the Citizenship Law, and was opposed, also in the minority, to the Tal Law, saying that it was incorrect to rule on the petition and that the authorized bodies should be given more time to work on the law. Danziger has written decisions and rulings that defend the rights of suspects and defendants, for example, supporting a delay in carrying out the sentencing of former President Moshe Katsav, but has not made his presence felt in rulings on human rights.
The prevailing view among jurists is that Grunis' presidency does not necessarily indicate any particular line we can expect in Supreme Court decisions. As a matter of principle, the president of the court is not involved in choosing which justices sit on panels. In cases of larger panels, there is a tradition that justices are added according to seniority, in order to prevent claims of a purposeful stacking of the bench. "Even the Supreme Court president is just one of 15 justices," one of them said recently.