Take the Gun Off the Table for Israel's Supreme Court

The justice minister is telling the court that 'If you don’t agree to my candidates, I will change the law so your consent will no longer be required.'

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An illustration in two parts: Ministers Bennett and Shaked, dressed as Trojans, try to break into the Supreme Court as Chief Justice Naor bangs a gavel on her podium. Kahlon steals Netanyahu and Bitan's turkey dinner.
Illustration. Credit: Amos Biderman
Haaretz Editorial

Supreme Court President Miriam Naor is known for her conservative approach, both in terms of judicial issues and her own personal conduct. Her decision on Thursday to publicize her letter to Justice Minister Ayelet Shaked – in which she wrote that Supreme Court justices would refrain from discussing candidates for the Supreme Court bench with the minister – signifies a watershed moment. Along with the other justices on the Judicial Appointments Committee, Naor decided to show Shaked that they would no longer hold their silence in light of her actions, which aim to remove senior judiciary figures from the selection process – even though they are the most informed people regarding potential appointments to the Supreme Court.

Presumably the justice minister knew that changing the rules for selecting new justices, while she was conducting intensive talks with other committee members in an attempt to create a consensual list, was unacceptable. Otherwise, she would have initiated a legislative change spearheaded by the government. However, such a move would have necessitated obtaining the guidance of legal advisers at the Justice Ministry, and they would probably have found ample reason to object to such a move.

Justice Minister Ayelet Shaked and Supreme Court President Miriam Naor at the Israel Bar Association conference in 2015.Credit: Tomer Appelbaum

Actually, the correct way to examine such a change, with all its constitutional ramifications, is to appoint a public committee of experts. Shaked, who is not interested in proper procedure but only a preordained result, chose the underhand way of supporting a private bill, submitted, exceptionally, by governing coalition Knesset members.

It’s bad enough that this legislative initiative is being pushed through during discussions about new candidates, and that Shaked decided to support a private bill. But she also concealed her support for it from the Supreme Court president. Changing the method of appointing new justices without consulting the president of the court is tantamount to making substantial changes to the collection of income taxes without involving the head of the Tax Authority.

Under these circumstances, it’s unsurprising that Naor chose not to word her letter in her customary diplomatic manner. The striking image she used – that Shaked had “placed a gun on the table” – is moderate in comparison to the way the justice minister operates. In fact, Shaked’s actions could be construed as pointing a gun to the head of the justice system, saying, in effect, “If you don’t agree to my candidates, I will change the law so your consent will no longer be required.”

The so-called “Sa’ar Law” was enacted in 2008 so that politicians on the selection panel – not justices – would obtain the right to veto candidates for the Supreme Court. But it has proved an effective law and should not be changed. It would be better if the justice minister ceased her questionable moves, disregarding the legal system and thereby demeaning it. She should adopt a more statesmanlike, prudent approach when initiating far-reaching legislative changes.

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