Ari Soffer wites in Israel National News:
From crude, sexist comments to outright death threats, the hysterical reaction to the appointment of Jewish Home MK Ayelet Shaked as Justice Minister has been shocking even by the low standards of the far-left.
Now, the incitement has reached such levels that Shaked will be assigned a personal security detail – a rare occurrence in Israel, where MKs and ministers can regularly be seen walking in public safely without bodyguards.
She is, we are informed, a “danger to democracy” – for wanting to curb the powers of an unelected clique which currently has the ability to veto any Knesset legislation it so chooses: the Supreme Court.
Those votes you cast last March? Those legislators acting on your behalf? They are just putty in the hands of 15 people of the same political hue (guess which one), who “know better” – and who are by no means shy of “correcting” the State of Israel’s democratic decisions (read: decisions not in-line with their own ideological vision), should they feel the need. That, we are told by Shaked’s ferocious critics, is the true face of democracy. And you’d better believe it!
For those unaware of just how undemocratic the Supreme Court is as an institution, look no further than the body which selects its judges, the Judicial Selection Committee.
The Committee is comprised of nine members. Of those, two are government ministers (including the Justice Minister and one other), two are MKs (one each from the coalition and opposition), and another two are members of the Israeli Bar Association.
So far, so balanced.
But the remaining three are sitting members of the Supreme Court – granting them an effective veto over any candidate. It’s also worth noting that according to convention the committee members selected from the Israeli Bar Association traditionally come from the Association’s two largest – and leftist-dominated – factions.
Once selected, the only way to remove a Supreme Court Justice (other than them retiring) is for the Court of Discipline – headed by judges handpicked by the Supreme Court President – to disqualify them. A Justice can only be considered for disqualification if both the Justice Minister and Supreme Court President are in agreement, and after a majority vote by seven of the nine Committee Members.
Given that nearly all Justice Ministers have come from the political Left – with the remainder coming from the more “establishment” elements of the Likud party (Netanyahu’s favorite was rumored to have been the distinctly anti-reform Likud MK Benny Begin) – the Supreme Court Justices have had a very sweet deal indeed: on the one hand, almost unlimited power to fashion the country in their image; and on the other, in the tradition of all Middle Eastern dictators, a phony legitimacy provided by an elaborate pretense of democracy in the shape of an opaque and cynically-stacked selection process.
To be sure, the issue is one of balance and independent oversight, and not any fundamental problem in having a robust judiciary (an important aspect of any functioning democracy). To that end, Shaked’s ultimate goal should not be to render it impotent but rather to knock it down several pegs and pave the way for a desperately-needed reform in both its composition and the limits to its power (of which there are currently none whatsoever).
Were the Supreme Court to be more balanced in its composition, it would not have gained the degree of resentment it has.
Instead, the Court acts as the Left’s insurance plan; even if they lose the Knesset, the “Bagatz” can always make sure the country’s trajectory doesn’t swing too far away from their vision to prevent them from pulling it back eventually.
The Right, on the other hand, has no such safety net.
This clear agenda is reflected in even a brief glance at the instances in which the court has intervened to torpedo Knesset and government legislation – as well as when it has decided not to.
Deporting illegal immigrants? That goes against Israel’s democratic fiber, so shoot it down they will – repeatedly!
Deporting Jews from Gaza? Preventing the gross miscarriage of justice – which undermines their own courts – of releasing convicted terrorist murderers just for a place at the table with the Palestinian Authority? Suddenly, it is “inappropriate” for the courts to intervene “in matters of government policy.”
And of course, it doesn’t help that the Basic Laws (Israel’s amorphous and poorly-defined version of a constitution) which define the Supreme Court’s powers are subject to interpretation by none other than… the Supreme Court.
Take for example the way in which the Courts have alternatively implemented and ignored the “Basic Law: The Knesset” as it suits them, to take de-facto control over who we can or cannot vote for (Ayatollah Khamenei could learn a thing or two).
In 1988, the Court accepted a petition to ban right-wing MK Rabbi Meir Kahane and his Kach party from running for election, based on an amendment made three years earlier to the Basic Law. According to that amendment, a candidate can be disqualified if he/she advocates for the “negation of the existence of the State of Israel as a Jewish and democratic state; incitement to racism; [or] support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.”
Rabbi Kahane’s anti-Arab rhetoric was deemed to fall under that second category, and hence the Court upheld his disqualification.
Fast-forward to February 2015 and, for the umpteenth time, pro-Hamas MK Hanin Zoabi’s ban on running was overturned by the Supreme Court – despite her being open about her negation of Israel as a Jewish state, as well as her clear and open support, again and again, “of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.”
Zoabi yes, Kahane no. The Court has spoken – and it needn’t justify its double-standard to us mere mortals. No wonder Zoabi was laughing so hard.
Former Supreme Court President Judge Aharon Barak once compared his court to the sages of the Talmud (minus the commitment to halakha, of course) – fashioning the very shape of the Jewish people with a near-divine mandate. That is genuinely how they view themselves.
It should come as no surprise, therefore, that the appointment, for the first time, of a Justice Minister who has clearly voiced her intention to curb some of the Court’s unlimited power, should be the subject of such ferocious hatred from the very political corner that Court has been doggedly advocating for and defending since the State’s founding.
Even without the vulgar comments and threats to her life, Ayelet Shaked will face a tough time achieving the reforms she seeks to implement (which still require clear and comprehensive outlining to allow for public scrutiny).
Jewish Home leader Naftali Bennett achieved a major coup in netting both the Justice Ministry and the Constitution, Law and Justice Committee, but already there are moves to defang Shaked – for example by removing her from the Judicial Selection Committee in favor of a more pro-establishment Likud MK.
However, should she succeed against the odds, it will be nothing less than a revolution. By breaking the suffocating stranglehold of an unelected, leftist clique over Israeli democracy, she can pave the way for the Supreme Court’s rehabilitation as a more balanced institution which actually represents the citizens of Israel.
Far from being a “threat to Israeli democracy,” as the demagogues tell us, Justice Minister Ayelet Shaked may well be its last hope.