Ministering Justice: A Conversation With Ayelet Shaked

Foreign Affairs

June 8, 2016
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Ayelet Shaked is a relative new­comer to Israeli politics. Shaked, 40, served as Benjamin Netanyahu’s office manager before breaking with the prime minister and joining Naftali Bennett’s Jewish Home party in 2012 and then winning election to the Knesset in 2013. Following the 2015 election, Shaked was named Israel’s minister of justice. Since then, she has courted controversy with a number of moves that critics call undemocratic, such as promoting a bill that would highlight which nongovernmental organ­izations (NGOs) get a majority of their funding from foreign governments. Shaked, who worked as a software engi­neer before entering politics, recently spoke to Foreign Affairs’ managing editor, Jonathan Tepperman, in Tel Aviv.

You’ve been justice minister for a year now. Which accomplishments are you most proud of?

One is the nomination of judges. I’ve already nominated 100 judges [to fill vacant posts], which is a lot. Also, we are doing a lot of things to reform the legal system, to alleviate court backlogs, to reform the bankruptcy law. I’m trying to find any business regulations that I can relax.

The transparency bill is also important, but it hasn’t passed yet. And the terror bill, which the Knesset has tried to pass for more than five years without success, will pass next month [in June]. It’s also very important; it gives the Shabak [Israel’s internal security service, also known as the Shin Bet] and the police new tools to fight terror.

What kind of tools?

For example, it allows them, in specific circumstances, to prohibit a suspect from seeing a lawyer for 21 days. Things like that.

What’s it like to be a leader of the Jewish Home—a political party known as the main voice for religious settlers—as a secular woman and Tel Aviv resident?

The fact that I was elected to my post in an open party primary shows that Jewish Home voters are very open and very liberal. I see my party as a bridge between the Orthodox and the secular. We believe that we should all live together and respect one another.

You currently serve under Prime Minister Netanyahu. You started your career working for him directly but then broke with him in 2012 and left Likud. What are the main differences today between you and Netanyahu, you and Likud?

The main difference between the Jewish Home and Likud, apart from religion and ideology, is that we object to a Palestinian state, while Likud, and the prime minister, supported one.

To return to your earlier question, I’m also trying to promote Arab society in Israel, by creating new courts in Arab cities and appointing a woman as a qadi [an Islamic judge, with jurisdiction over family law] for the first time.

Are these reforms meant to address the inequalities between Arab Israelis and Jewish Israelis?

There’s no inequality. According to the law, everyone is equal. But of course, we need to invest more in some Arab towns. And the government just passed a big plan to do so.

So the problem is not one of legal equality but one of resources?

Yes, sometimes. But the government is now fixing that. And here in my ministry, nine percent of employees are Arabs or Druze.

To return to politics, there are rumors that the prime minister is trying to create a big new party of the right, which would absorb all the smaller right-wing parties. What do you think of that?

It’s not something we’ve really talked about. I don’t think it’s realistic. But we’d never rule anything out.

Some critics, including U.S. Ambassador Dan Shapiro, have criticized the NGO transparency bill as an attempt to muzzle dissent. Why is the bill necessary? Why publicly identify those NGOs that get more than half of their support from foreign governments?

The amount of attention this bill is getting is absurd. There are so many other important things that we are working on, yet for some reason, this bill gets so much attention. It’s just a transparency bill. If an NGO gets more than half of its money from a foreign government, it’s the right of the citizens of Israel to know that. Why? Because some countries have found a way to interfere in the internal affairs of Israel—not through diplomacy but by funding specific NGOs that serve their ideology.

By “some countries,” do you mean the United States and Europe?

Mainly Europe. And by the way, it’s not that [such funding] won’t be allowed. It’s allowed in a democracy. But I think that the public has the right to know about it.

Critics say that the real point of the law is to shame these organizations by making their members wear special badges in the Knesset and by imposing a public label that would damage these groups’ legitimacy.

First of all, the badges aren’t part of the law. But by the way, every lobbyist in the Knesset needs to wear a badge. So even if the badges were in the law, it wouldn’t be bad.

Second, it’s not about shaming. It’s about the right to know. That’s all.

Do you feel that foreign governments should not be funding NGOs in Israel?

I think that foreign governments should not fund political NGOs in Israel. I don’t think that the U.S. administration would like it if Israel, for example, were to fund an NGO in the United States that sued American soldiers for their service in Afghanistan.

Do you see the NGOs that would be targeted by the law, such as Breaking the Silence, as foreign agents or threats to Israel?

They are not threatening Israel. Our democracy is very strong; we can handle them. But I think they are doing damage to Israel outside the country, by spreading a lot of lies and distorting the picture. Sometimes if you only tell half a truth, it’s a lie. They take one specific case and generalize it, depict it as if it shows the way all soldiers behave. They’re doing it on university campuses in the United States. It’s causing damage to Israel.

Would the legislation also affect groups on the right?

I haven’t checked which NGOs would be affected by the law.

There will be four to five vacancies on the Supreme Court next year, and you’ll get to help nominate the replacements. You’ve been quite critical of the court in the past and have tried to limit its ability to over­rule decisions by the executive or the Knesset. What role do you think a supreme court should play in a democratic society?

A very important role, of course. The court’s job is to resolve disputes and prevent the state from carrying out actions that are illegal. I criticize the court when it intervenes in matters of policy, not in matters of law.

Do you have a problem in principle with judicial review based on interpretation of Israel’s Basic Laws?

No, I don’t. But I think that [the court] should use that power very, very rarely, and only in very prominent cases where there’s been a violation of the law—not on questions of policy.

In the United States, the Supreme Court uses what it calls ”the political question doctrine” to avoid getting involved in questions it deems largely political. Does a similar doctrine exist here?

Yes, but the reality is different. The U.S. Supreme Court is also activist. But U.S. Supreme Court justices are selected by politicians. In Israel, it’s done by committee. I’m the head of the committee, but there are three Supreme Court justices on it as well, and we can’t make a selection without them. So the Supreme Court judges have a lot of influence over the selection of their replacements.

Would you like to change that?

There are a few things we cannot do in this coalition. I’m not going to bang my head against a wall. But we do favor a law that would give judges the formal power to cancel a law. This power was never given to them by law; they just took it. But the law would also give the Knesset the power to override the court, like Parliament can in Canada, for example.

But in Canada, Parliament can only overrule the court on constitutional issues if it specifies that it is doing so notwithstanding the court’s opposition. That acts as a check on Parliament.

What we’re talking about in Israel is requiring a big majority, more than 60 percent of the Knesset, to do so.

Aren’t you worried this could give rise to a tyranny of the majority? Because the purpose of an unelected judiciary is to act as a check on the legislature to prevent pure majoritarian rule.

I think that if you require a vote [to overrule the court] to pass by 65 percent, then I don’t see the Knesset using this power very often. It will be a rare occasion.

Freedom House recently downgraded Israel’s standing due to what it claims are new restrictions on the freedom of the press. And last week, the deputy chief of staff of the IDF said that the current climate of intolerance, violence, and self-destruction reminds him of Germany in the 1930s. How do you interpret such criticisms?

You have to distinguish between the two. First of all, Yair Golan [the IDF’s deputy chief of staff] retracted what he said and said there is no room for such a comparison.

Regarding [Freedom House], I want to hear facts, not talk about atmosphere. Israel is one of the strongest democracies in the world, with close to absolute freedom of expression. You can see that by looking at our social networks.

So you don’t worry that any of the measures you’ve mentioned could chill freedom of expression here?

No, and they’re not intended to.

What about the new bill that would allow the suspension of Knesset members for making anti-Zionist statements?

I don’t like this law, and I don’t support it. I don’t think it’s necessary. I only voted for it out of coalition discipline. But it’s unnecessary. I think that Knesset mem­bers should say whatever they want. And by the way, no one will use this law.

You recently proposed extending Israeli civil law to settlements in the West Bank.

No. Don’t believe all the things that you read in the newspapers.

Today in Israel, when a law is passed in the Knesset, the military authority in Judea and Samaria has discretion over how to apply it in the settlements. What I’ve proposed is that we set up a team that would be manned both by the Ministry of Justice and by the Ministry of Defense to immediately translate new laws into military regulations, rather than letting it happen sporadically.

You’ve made it clear in the past that you favor annexation of large parts of the West Bank—Area C, which is something like 61 percent of the territory. So it’s not surprising that some of your critics have called this move a first step toward annexation. Is there anything to that?

No. We aren’t talking about annexing Judea and Samaria. The proposal has been criticized because, like you, no one understands what it’s saying. Politicians on the left want to use it to score poli­tical points. No one has bothered to understand what I really meant.

Speaking of annexation, what timeline do you envisage?

It’s not realistic today. What I’m saying is that the two-state solution will not happen in the near future. The gaps between the Palestinians and the Israelis are much too big to bridge. Arafat, Abu Mazen [Mahmoud Abbas], Olmert, Barak—they all tried to do so many times, and they failed. And the Gaza withdrawal showed the Israeli public that even though we withdrew down to the last inch, we only got terror. You know, Einstein defined insanity as when you do the same thing over and over again and expect different results.

That’s why today the majority of Israelis don’t think it’s realistic to establish a Palestinian state. So it’s not that I think we can annex Area C today, but I think it is something that we need to talk about, to put on the table.

You make it sound like your objection to the two-state solution is more practical than ideological.

It’s just not realistic. All the countries around us are collapsing, and there is a huge battle in the Middle East between the Shia and the Sunnis, and there are terror organizations all over. Israel really is like a villa in the jungle. And the situation in Judea and Samaria for the Palestinians—OK, it’s not perfect, but it’s OK. They are living their lives; they are selecting their leaders. The situation could be far worse than it is now.

Second, I do believe in the historic right of the Jewish people to the land of Israel.

So how do you see the relationship with the Palestinians evolving? Aren’t you worried that as conditions con­tinue to deteriorate, their anger will continue to grow?

I don’t know if what you’re saying is true. Israel-Palestinian security coor­dination is strong. I think that Israel and the inter­national community need to invest in the economy of the Pales­tinians. Maybe this will help to weaken Hamas. I think if we are willing to push for prosperity and to invest in a real economy, and if the inter­national community would not just transfer money but give the Palestinians inde­pendent energy and stronger industry, it could help.

I also support building a port for Gaza by building an island in the sea.

Tell me a bit more about the situation of Arab Israelis. Do you feel that there are major problems there that need to be addressed?

I think that the government is now doing the right things.

But a lot of damage was done by the last government, which raised the threshold of votes needed for a party to enter the Knesset.

I supported leaving the situation as it was and not raising the threshold. That was unnecessary. But the goal was not to hurt the Arabs but rather to strengthen the government.

Whatever the intentions were, that rule, and the comments the prime minister made during the last election about Arabs being bused in droves to polling stations, created a lot of ill feeling among the Arab Israeli population. Are the moves you’re making now an attempt to address that sense of alienation?

Many politicians said worse things than the prime minister did during the election. But we are doing what we’re doing because we think it’s the right thing to do.

How do you assess Israel’s security today? Some people argue that Israel is more secure than it’s ever been, because for the first time in its history, war with an organized Arab army is impossible. But others argue that the region is more dangerous than ever, because of the fragility of Israel’s new Arab friends, because of the Shiite-Sunni divide, because of Iran, and because of ISIS. Which view is correct?

Both of them are correct. You are right: there is no threat that a big Arab army will invade Israel. But on the other hand, there are many other threats. First of all, of course, is Iran and its bomb. The agreement with Iran did two things. First, they will have a bomb in ten years. They will have a bomb. It’s just a matter of a decision. In ten years, if they decide to have a bomb, they’ll have one a few months later. This is a huge threat to Israel.

The other bad thing about this agreement is that it caused an arms race in the Middle East. The United States wants to give more arms to moderate Sunni states. And part of the weapons embargo on Iran will be removed in five years. And [the Iranians] will now get a lot of money, so they will arm themselves.

Another threat is the nonconventional arms race. Saudi Arabia and Egypt now see that Iran will have a bomb in ten years. So they also want a bomb.

What about the broader international situation? Do you worry that Israel is becoming more isolated internationally, because of the BDS [Boycott, Divestment, and Sanctions] movement or because of the friction between the leadership here and that in Washington?

I believe that the U.S. administration—it doesn’t matter which administration—will stand behind Israel in every bad situation. The administration will under­stand that Israel is its ally and the only democracy in the Middle East.

And I expect the American administration to fight the BDS movement on university campuses.

The New York Times reported a few weeks ago that tensions between Netanyahu and President Obama were now delaying the passage of a huge new aid bill the two countries are negotiating.

I can only say that I hope they will resolve it.

Do you ever worry that Israel is too dependent on the United States?

The support of the United States is very important. But I’m not worried that someday we might need to get along without it. If that does happen, we will succeed. But I don’t see it happening. I hope it won’t.