Israel's Justice Minister, Supreme Court President Duel Over Role of Courts

Minister Shaked accuses judges of excessive activism while Justice Naor defends their decisions on behalf of human rights.

Revital Hovel
Revital Hovel
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Justice Minister Ayelet Shaked.Credit: Olivier Fitoussi
Revital Hovel
Revital Hovel

An Israel Bar Association meeting on Tuesday turned into an arena for a duel between Justice Minister Ayelet Shaked, who complained of what she called excessive judicial activism, and Supreme Court President Miriam Naor, who asserted that her fellow judges were doing their job to protect human rights.

Shaked also announced that the apprenticeship for law school graduates before they are licensed to practice law will be extended from one year to two.

The minister called on the courts to conduct themselves with moderation and restraint. Stating that Israel is suffering from “legalitis,” she presented figures showing that there are 636.9 lawyers per 100,000 people in Israel, compared to 151.State of Israel is suffering from ‘legalitis,’ which forces us to get used to a burd3 in Europe and 23 in Japan. “These figures tell the story precisely,” Shaked said. “The ensome and cumbersome system, bound by the chains of bureaucracy.”

Shaked, who is not a lawyer, also drew a connection between the large number of lawyers in Israel and judicial activism, saying when the prevailing spirit is that everything is properly a subject to be decided by the courts, “the legal solution becomes almost automatically a default option. The result is courts collapsing under the burden,” she said, “despite the judges’ hard work.”

She called on the judicial system to demonstrate “moderation in its relationship with the legislative and executive branches.” With regard to constitutional rulings, Shaked said a distinction should be made between a court decision that outlines a constitutional direction and a series of rulings that shape the constitutional order instead of leaving this to the Knesset.

For her part, Naor made reference to the title of one of the conference panels: “Who has the last word?” – the constellation of power between the Knesset and the Supreme Court.“

“The title suggests battles over prestige, battles over ego and battles over power that purportedly exist between the Supreme Court and the Knesset or the cabinet,” she stated, but added that such consideration are far from judges’ minds. “We think like judges. The terms ‘the last word,’ ‘arm-twisting,’ ‘power struggles’ are not in our lexicon. We are not motivated by such considerations. We carry out our job as judges protecting human rights and the foundations of democratic rule. That’s our job. That’s our obligation. We respect the Knesset and the cabinet, but we will fulfill our obligation.”

Addressing the topic of government legislation on asylum-seekers who have illegally entered the country, a topic over which the High Court of Justice has intervened repeatedly, Shaked said the court should demonstrate moderation and leave it to the legislature to decide on the details of the policy, “certainly with respect to everything related to core government subjects such as dealing with the challenges of migration.”

The judicial system, Shaked said, has been harmed by what she said were excesses that have taken it into areas of responsibility belonging to branches of government.

Naor said there was a dialogue with the Knesset over the migrant issue, adding, “If we don’t protect democracy, democracy will not protect us.”