Politicized Judiciary Looms Under New Justice Minister

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Jewish Home's Ayelet Shaked. Credit: Eyal Toueg

Justice Minister-designate Ayelet Shaked comes to her position with an agenda that includes criticizing Israel’s legal system in general and the Supreme Court in particular.

That creates a potential for clashes, especially since the justice minister’s job is to defend and represent the legal system both in the Knesset and in the public debate — something judges cannot do for themselves, since they generally do not appear before the Knesset and usually speak only through their rulings.

At a time when Israel’s judicial system, especially the Supreme Court, is increasingly under attack, the justice minister has an especially important role to play in defending the system and its independence. Shaked seems unlikely to play this role, given that she herself has sponsored bills whose passage would weaken the legal system. It is possible, however, that her new perspective, from within the Justice Ministry, will change her positions as well.

Thus while nobody doubts Shaked’s abilities and diligence, the question is how she plans to use them as minister.

One crucial area where the justice minister wields influence is legislation. The Ministerial Committee for Legislation largely determines whether a bill will pass or fail. As its chairwoman, the justice minister will have the power to accelerate or delay legislation, since she sets the committee’s agenda. She also sets the priorities of the Justice Ministry’s legislation department, enabling her to draft the bills she wants and then push them through the ministerial committee and the Knesset.

Clearly, Shaked will not be able to pass bills that are widely opposed by other coalition members, but she can certainly exert great influence over the government’s legislative agenda and work to advance or to bury legislation. To give one worrisome example, she has previously voiced opposition to bills granting equal rights to equal rights to lesbian, gay, bisexual and transgender people, and as justice minister her ability to block such legislation will rise significantly.

As the head of the Judicial Appointments Committee, the justice minister has great influence on the panel, including the power to nominate candidates for the Supreme Court. Moreover, the role of the chairwoman in obtaining the necessary consensus for Supreme Court appointments, which must be approval by seven of the panel’s nine members, means that Shaked will have considerable say in the choice of new justices.

The committee will have to appoint at least three new justices in 2017 and a fourth in 2018. Thus if the government survives until then, Shaked will be a senior partner in shaping the court for years to come.

Former Justice Minister Tzipi Livni once refused to convene the panel for months in an effort to mobilize a majority for appointing Prof. Ruth Gavison to the Supreme Court. The effort ultimately failed, but it still shows how a justice minister can try to use her position as committee chairwoman to affect the results.

This government will also have to appoint a new attorney general. The appointment is made by the cabinet on the recommendation of a public committee, but the justice minister has a significant role in the process. And that will be true even though Prime Minister Benjamin Netanyahu presumably won’t leave the issue entirely in her hands.

So will Shaked try, for instance, to appoint jurists affiliated with the settler right, who think the West Bank isn’t occupied and all the settlements should be legalized? Or jurists like those who argued during last summer’s war with Hamas that it was permissible for Israel to stop supplying water and electricity to the Gaza Strip? Or will she support someone whose views are closer to those of the mainstream Israeli and international legal community?

The justice minister also plays a decisive role in granting pardons: She forwards recommendations to the president and signs off on his decisions. The latter is usually a formality, but in 2010, the High Court of Justice ruled that in exceptional cases, the minister can refuse to sign a pardon or commutation granted by the president. Thus there’s a real fear that the pardons process might be politicized.

Beyond all this, three bills Shaked has pushed would undermine the legal system’s independence and its ability to defend human rights: a bill defining Israel as a Jewish nation state, a bill to change the composition of the Judicial Appointments Committee and a bill enabling the Knesset to override Supreme Court rulings declaring laws unconstitutional.

The first could undermine the rights of Israeli Arabs. The second would give politicians more seats on the appointments panel, which would encourage the appointment of judges who are less “activist” and thus more “comfortable” for the politicians. The third would enable the Knesset to override not only court rulings, but also the human rights those rulings are meant to protect.

It’s doubtful any of these bills will pass, given the opposition of Moshe Kahlon’s Kulanu party. But the very fact that the justice minister supports such bills is a threat to the judicial system’s most important asset, its independence.

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