Israel’s Chief Justice Esther Hayut.
(photo credit: MARC ISRAEL SELLEM)
Addressing a meeting of Germans and Israelis in Nuremberg on Tuesday, and referencing the Nazis’ antisemitic, racist laws enacted there in 1935, Supreme Court President Esther Hayut warned that if Israel were to pass a law weakening the judiciary, as has been rumored in the media, it could spell the end of the country’s democracy.
With the ever-present symbolism of the Nuremberg laws and the war crime trials there a decade later, Hayut cautioned against the reports of changes to the separation of powers being entertained by Israel’s expected governing coalition.
Quoting from American historian Timothy Snyder’s 2015 book Black Earth: The Holocaust as History and Warning, she said: “History does not go backwards, but it gives us the opportunity to learn from and connect to it, and it gives us warnings if we are willing to listen.”
Alluding to Nuremberg, she said, “The German nation legislated one of the most advanced constitutions ever for protecting human rights and freedoms – the Weimar Constitution. One of the universal lessons we should learn from the historical events I noted is that judicial independence, and the absence of any dependence by judges at either the institutional or individual level, is one of the most important guarantees that the individual will have an address to turn to in order to protect their rights.”
Some members of Prime Minister Benjamin Netanyahu’s expected government coalition, likely not be formed before the end of May, want to radically alter the make-up, appointment and powers of the Supreme Court, as well as of the attorney-general’s office.
Netanyahu has expressed support for changes to the current balance of powers, which will prevent the court from canceling Knesset laws in a number of controversial areas, but has not specified the nature of the judicial reforms.
Hayut noted that Weimar Germany’s liberal democracy was undermined by the anti-democratic Nazi party, which used free speech and majority rule to disguise its dictatorial intentions.
Among the changes to Israel’s legal system being debated are whether to give the Knesset veto power over Supreme Court rulings, and whether to reduce the scale of issues regarding which the court would be empowered to review the constitutionality of laws enacted by the Knesset.
Israel does not have a formal constitution. Since the 1990s, the Supreme Court has been aggressively nixing Knesset laws that it ruled were violating the Basic Laws, which serve in lieu of a constitution.
Another possible change would require several current Supreme Court justices, viewed as too activist by some in the expected coalition, to retire. Alternatively, the number of justices could be enlarged by “court packing” – allowing the appointment of enough new justices to ensure a conservative majority.
One of the key issues in the debate is also whether any of the changes in law might allow Netanyahu to avoid or delay prosecution for corruption and bribery, as Attorney-General Avichai Mandelblit is closing in on a decision later this year to indict him.
One new law being considered could give Netanyahu and all other Knesset members immunity from prosecution while in office.
Some parties want to split the attorney-general job into separate roles – a top legal adviser for the government and a top prosecutor. They are also considering blocking the attorney-general from arguing before the Supreme Court in cases where he would refuse to support the government’s position, or formally granting ministries the right to hire their own lawyers if there is a conflict with the attorney-general.
Summarizing these issues, the Supreme Court president said that the proposed laws, including nixing a limit on its judicial review, could result in a constitutional crisis.
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