Shaked's Warning: A Blatant Attempt to Intimidate the High Court

Ayalet Shaked's warning against invalidating the anti-infiltration law indicates that the justice minister doesn't understand her job, as well as the basic meaning of the rule of law.

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Justice Minister Ayelet Shaked.Credit: Olivier Fitoussi

Justice MInister Ayelet Shaked’s Facebook status on Tuesday morning, prior to the High Court of Justice’s ruling on the amendment to the Prevention of Infiltration Law, sets a new record for destructiveness and trampling on the separation of powers.

Shaked noted that the legislation had already been struck down twice by the court, and warned that if it was invalidated again, “This would be a declaration that south Tel Aviv is the official lodging facility for infiltrators.” And if that weren’t enough, she announced that every two hours until the ruling was announced, she would post videos depicting “the unbearable lives of south Tel Aviv residents.”

It’s hard to remember such a blatant attempt by any justice minister to intimidate the High Court of Justice just before it issued a ruling. The post indicates that this justice minister doesn’t understand her job, nor does she understand the most basic meaning of the separation of powers and the rule of law.

It should be noted that she doesn’t even seem to have a real grasp of the material, since in her reference to the current version of the amendment, she said, “The version of the law approved by the Supreme Court was too soft, and proof of this is that in recent months the infiltration phenomenon, which we had almost overcome, has returned, and dozens of Africans have infiltrated Israel.” In fact, the Supreme Court did not approve any version of any law the last time. On the contrary, it struck down a law. The current version has never been approved or rejected by the High Court. (Shaked later changed her post to read, “The version of the law approved by the Knesset”).

In a properly run country, the prime minister would have fired the justice minister for so grossly intervening in the work of a court that is on the verge of issuing a ruling. To anyone who sought to give Shaked a chance to prove that when she assumed office she would take the responsibility that comes with the job seriously, it should be clear that she is uncertain about the substance of her task as justice minister.

Her Facebook status is, of course, just the tip of an even more threatening iceberg, under the shadow of which the High Court must rule. Shaked was appointed justice minister as a “contra” to the legal system, and arrived armed with the “override clause” initiative that would enable the Knesset to re-legislate laws invalidated by the High Court as unconstitutional. The High Court must issue its ruling on asylum seekers, along with other rulings, with this threat hovering overhead.

It should be noted that to overcome this ruling, the state has launched a new policy of deporting asylum seekers to third countries. The plan is to expel Sudanese and Eritreans (who even the state concedes cannot be deported to their native lands), to Uganda and Rwanda, in a manner that will allow the state to hold those eligible for deportation at Saharonim – this time claiming that they are being held with intent to deport them. The constitutionality of this policy is being challenged in a separate proceeding.

In the ruling issued Tuesday, the court was dealing with detention not for the purpose of deportation, which means the legal result, based on the two previous rulings, ought to be the same, i.e., that such detention is unconstitutional. Despite the personnel changes on the High Court, the current Supreme Court President Miriam Naor supported the striking down of the amendment in the last two rounds, as did most of the sitting justices. Nevertheless, the court, which in its previous ruling did not deny the difficulty in striking down a law for the second time, has now been weighing whether to disallow it a third time, even as it confronts a hostile government and a justice minister who threatens to undermine its authority.

Such considerations are not meant to be part of a High Court ruling, but it’s hard to know how well were the justices able to ignore the cloud hanging over their heads. It isn’t clear whether Finance Minister Moshe Kahlon’s objection to harming the status of the High Court is enough to keep things on an even keel. The amendment to the Prevention of Infiltration Law, which the Knesset re-legislated twice following previous High Court invalidations, has brought the confrontation between the court and the Knesset to a head. This third round is the first of the Shaked era, and as such constitutes a test of the relations between the authorities in this period.

In any case, with her threatening status and promise of more posts every two hours until the ruling, Shaked has crossed the Rubicon, and chose to act not as justice minister, but as the last of the talkbackers.

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