The Right Wing vs. the Court

The election of a right-wing government to an additional four-year term will eliminate the separation of powers and erode the rule of law in Israel

Israeli Justice Minister Ayelet Shaked in Tel Aviv, Israel December 29, 2018

As expected, the Supreme Court’s decision Sunday to bar from running in next month’s election Michael Ben Ari, the ideological successor to Rabbi Meir Kahane, while overturning the disqualifications of the Balad-United Arab List joint slate and of Ofer Cassif of Hadash, sparked an all-out attack on the court by the right. Criticism of the so-called dictatorship of the High Court of Justice and the judicial junta was voiced in various versions by all the camp’s components, as if written by the same person. The same goes for the right’s shock over the court’s allowing the Arab Knesset members (“terror supporters”) to run for re-election while disqualifying the Jewish Zionist, whose children have served in the army.

It was also difficult to distinguish among the promises, or perhaps threats, hurled at the judicial establishment: “The people will decide, and will return the High Court to its natural place” (MK Bezalel Smotrich); “We’ll stop the High Court’s activist rampage” (the far-right Union of Right-Wing Parties); “We’ll work to pass an override clause that will restrain judicial activism and properly express the will of the people” (Shas) and “Only a deep, fundamental change in the legal system will put an end to this intolerable situation” (Tourism Minister Yariv Levin).

Justice Minister Ayelet Shaked didn’t make do with vague threats; she quickly issued a plan “to complete the judicial revolution in my next term.” She proposed, first and foremost, making the cabinet and the Knesset — that is, the ruling coalition — responsible for appointing Supreme Court justices, rather than by the Judicial Appointments Committee. Her proposal — which would turn the selection of justices from a professional matter into a political one and thereby sabotage the principle of separation of powers (checks and balances) — goes against the global trend toward strengthening the professional foundation of judicial appointments, at the expense of the political side.

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In addition, Shaked proposed an override clause that would make it possible for a legislative majority to overturn High Court rulings, thereby impeding the protection of human rights and minority rights. In her view, the judicial system in general and the High Court of Justice in particular are also undermining Israel’s security by “handcuffing” the army. She also promised to make the legal advice given to cabinet ministers conditional: If the legal opinions they receive don’t jibe with the ministers’ “legal scholarship,” they will have the option of hiring their own legal advisors, at the public’s expense, who will be willing to defend any improper act. Also in her sights are the legal advisers of the government ministries: She wants to make them personal appointees, who are dedicated to the cabinet minister rather than to the rule of law.

Like others on the right, Shaked, associates vox populi with the will of the coalition majority, and democracy with unrestricted majority rule. The election of a right-wing government to an additional four-year term will eliminate the separation of powers and erode the rule of law in Israel.