Analysis

With Supreme Court Picks, Netanyahu's Government Launches Anti-constitutional Revolution

Israel's justice minister has created a court that will serve her political aim of perpetuating the occupation and annexing the West Bank without granting the Palestinians citizenship.

Prime Minister Benjamin Netanyahu (left) and author of the "transparency bill," Justice Minister Ayelet Shaked in Knesset chambers, October 13, 2015.
Moti Milrod

The appointment of four new justices to the Supreme Court on Wednesday is the most important achievement in the political and social revolution being pursued by Prime Minister Benjamin Netanyahu’s current government.

Justice Minister Ayelet Shaked promised to fundamentally alter the character of the judicial branch in Israel, and she has now taken a major step toward fulfilling that promise – one that will impact court rulings and Israeli democracy for many years to come.

It is a concrete manifestation of Netanyahu’s old call to “replace the elites.” 

Justices George Karra, Yael Wilner, David Mintz and Yosef Elron .
Tomer Appelbaum, Olivier Fitoussi

Shaked described her philosophy in an article entitled “Paths to Governance,” published in the right-wing journal Hashiloah late last year. In it, she called for a reversal of the “constitutional revolution” spearheaded by former Supreme Court President Aharon Barak. 

The justice minister wants to reduce once more the right to stand before the High Court of Justice, and to close it off to public petitioners such as lawmakers and nonprofit organizations. You were defeated in an election? Too bad. Don’t try to shift your political struggle from the voting booth and Knesset to the courthouse. 

In her view, judges have no place intervening in political disputes or in determining governmental and budgetary priorities. Instead, their role is confined to specific issues of individual petitioners who say they were harmed by the state’s actions. 

But Shaked is not running for head of a department of political science, and isn’t interested in a theoretical debate about the separation of authorities and the court’s jurisdiction. 

Her judicial appointments – like the other decisions of this Netanyahu government – have a political aim: Perpetuating the occupation and advancing the annexation of the West Bank to Israel, all while expanding settlements and without granting citizenship to the Palestinians.

In order to get there, the people and organizations that work against the occupation, and hitherto enjoyed the protection of the Supreme Court – which safeguarded freedom of expression and accepted the petitions of organizations fighting against land grabs and the use of torture, among other things, in its guise as the High Court of Justice – must be stripped of their legitimacy. 

As Netanyahu, Shaked and their friends on the right see it, the role of the court is to grant legal legitimacy to the government’s decisions; not to bother the government with rulings that would limit its power and protect civil rights. 

Justices are supposed to give backing to the prime minister, ministers and other bureaucrats, and justify their actions with detailed rulings. The liberal viewpoint which says that the Supreme Court is meant to serve as the citizens’ defense against the arbitrary exercise of power, is perceived by the present government as a leftist stance that’s representative of the losers who were trounced in the election and should now get out of the way. 

Following Barak’s constitutional revolution, we are now witnessing the “anti-constitutional revolution.” Shaked loves to quote U.S. figures and sources to justify her views – but the United States has a constitution with a Bill of Rights. Israel has no such thing. Here, the democracy rests solely upon Supreme Court rulings that recognize freedom of expression, freedom of the press and freedom of the individual. 

That is not all about to collapse in a day. And justices have sometimes ended up making liberal rulings that surprised the people who appointed them. But the expectation with these latest appointments is that the new justices will diminish civil rights, and shift the balance of power in Israel’s unwritten constitution for the benefit of the government and settlers. 

For years, rightist politicians have maintained that, despite repeated election victories by Likud and its satellites, the left really reigns supreme in the country via the media, cultural institutions, the Supreme Court, and military and governmental bureaucracy. 

Two years ago, Netanyahu resolved to put an end to this griping by establishing a totally right-wing government that could take over these centers of power once and for all. 

This is what is behind Culture and Sports Minister Miri Regev’s demands for shows of loyalty; the fight against Kan (the new public broadcasting corporation); and the appointments of the police chief and attorney general – and now, of the new judicial appointees, which marks a big step toward making the right’s dreams come true.