Amnon Rubinstein speaks on 'the crisis in Israel's Legal System'

By Michele Alperin
Dec. 7, 2007

Amnon Rubinstein, "the father of constitutional law in Israel" recently spoke to a crowd of 200 on The Crisis in Israel's Legal System at the 20th annual Amy Adina Schulman Memorial Lecture on Dec. 2 at the Jewish Center of Princeton

Rubenstein originally studied economics, international relations and law at the Hebrew University, becoming a member of the Israel Bar in 1963 and receiving a Ph.D. in law from the London School of Economics in 1966. He has been a professor of law and dean of the law faculty at Tel Aviv University and a columnist for the Ha'aretz newspaper.

In 1974, he founded the Shinui party, which joined Mapam and the Civil Rights Movement to form Meretz in 1992. He served in the Knesset for 25 years and after retiring from the Knesset served as dean of the Radzyner School of Law of the Interdisciplinary Center and provost of the IDC Herzliya.

In 2006, he was awarded the Israel Prize by a panel of judges that described him as the "father of constitutional law in Israel." As such, Rubenstein is a unique position to speak on this topic.

Rubenstein opened the talk stating from its founding, Israel's courts, operating within the Anglo-American tradition of government by case law, have been powerful and independent.

"The judges are famous for being independent, highly critical of the government, and passing judgment against the government," observed Rubinstein. "They are stalwarts of human rights."

To understand the court's role in protecting human rights requires a look at Israel's history. The United Nations, as part of its mandate 60 years ago, specified that the two states to be established should have constitutions to protect minorities and ensure human rights. David Ben Gurion, who originally supported a Constitution, but then changed his mind, and Menachem Begin, who favored a Constitution, eventually compromised on what Rubenstein called a "Constitution by installments:" The Knesset would pass laws granting basic rights, which would then accumulate into a Constitution.

As a result, for years the Supreme Court defined individual human rights with nary a murmur of dissent, explained Rubenstein.

In 1992, Rubenstein initiated and legislated the two basic laws that guarantee human rights in Israel, one explicitly called the law of human dignity and liberty. With the laws' passage, the Supreme Court could pass judgment on the government and Knesset by declaring "null and void" any acts of the Knesset that contravened these basic laws.

As the court became more activist, religious, right-wing, and even centrist, legislators started to resent the idea that the Supreme Court was dealing with things they felt were in the legislature's purview.

This set the stage for a crisis in July with the appointment of a new ministry of justice, Daniel Friedmann, who asked his assistants and Justice Ministry professionals to explore legislation that would prevent the Supreme Court from hearing appeals on diplomatic, security and budgetary matters. He has also proposed changing the way members of the Supreme Court -- which is appointed by an independent, nongovernmental committee - are selected.

Supreme Court President Dorit Beinisch, and other defenders of an activist court, are concerned that Friedmann's efforts will destroy the separation between the executive and the judiciary. The clash of wills between Beinisch and Friedmann has not just been theoretical though, but has played itself out in response to recent actions by the court.

Three months ago the Knesset passed a law that prevented Palestinians from settling in Israel, even to marry an Israeli Arab. The law was supported by a majority of Israelis, who had heard many times Arafat's rant that the Palestinians should conquer Israel through the wombs of Palestinian women, that is, demographically. Yet the Supreme Court declared the law "null and void."

Rubenstein also spoke about the most recent skirmish in this debate ignited when the government decided to cut off the supply of fuel and electricity to the Gaza Strip, calling it enemy territory. As happens when people disagree with a Knesset law, petitions against the law arrived at the court, in this case from left-wing parties and nongovernmental organizations.

"The Supreme Court decided that the law was justified because the fuel was being used by terrorists and people shooting at Sderot," said Rubenstein.

But there was a proviso that a final decision would await the government's presenting further evidence about its motivation to cut off electricity. The controversy then hit the papers, with opponents maintaining that this is not the function of the court and supporters stating that the Supreme Court is the only body examining whether an act by the Israeli government is compatible with international law.

An issue closely related to the current controversies is the movement supported by Rubenstein to create a Constitution for Israel. He is dubious that the effort will be successful because the need to develop a preamble would raise the delicate issue of the nature of Israel.

"What do we mean by a Jewish state -- a religion, a heritage, a nationality, or a secular nation?" he asked stating even secular members of the Knesset don't want to touch this issue.

Despite the controversy over the Supreme Court's role in protecting human rights, Rubenstein suggested, in response to questions, that Israel is successfully protecting individual rights.

One person in the audience asked about Israel's laws on torture.

"The court ruled that all forms of torture are illegal," responded Rubenstein, except for a qualification whereby, in the case of a ticking gun, a defendant might use a defense of "necessity."

"In Israel, Guantanamo wouldn't be outside of the jurisdiction of the Supreme Court," said Rubenstein stating any member of the Israeli army or other Israeli officials who enter the territories carry with them the principles of Israeli law. "This allows hundreds of petitions from Palestinians on the West Bank."

And gay rights and abortion are not even 'on the table' as issues.

In response to a question from Rob Goldston about the separate school systems for Jews and Arabs, Rubenstein explained that the communities want to maintain separate educational systems.

"Separate but equal is unequal unless you are dealing with group rights to protect the heritage of a minority," he maintained.

Rubenstein concluded his remarks by sharing his feelings about the Annapolis conference, which he said were based entirely on public information.

"On the whole, it was a good thing," he said stating his three reasons were that: Iran was excluded and Syria and Saudi Arabia participated; that Olmert had impressive radio and television appearances, which could only redound to Israel's good in the public relations war; and that the Palestinians and the Israelis need to talk. "When we don't talk, guns talk," he observed.

Yet even Jewish public opinion has moved from the idea of a Greater Israel to that of two states for two people.

"I have heard ideas from right-wing people that I would have been stoned for if I had said them 20 years ago," said Rubenstein stating he has seen the Arab side become more radicalized and pro-Hamas. "Even among Israeli Arabs, there has been a non-acceptance of Israel as a Jewish state."