Chief justice warns: Nixing judicial review threatens Israel's democracy

The court's fight with the coalition over the state's policy for African migrants has precipitated the latest push to circumscribe the court's powers.

Israel's High Court of Justice (photo credit: ISRAELTOURISM / WIKIMEDIA COMMONS)
Israel's High Court of Justice
Supreme Court President Esther Hayut said Sunday that steps being contemplated by Prime Minister Benjamin Netanyahu’s coalition to limit the judicial review powers of the nation’s highest court would hurt Israeli democracy and the rule of law.
“Most of all, for us these values give voice to the principle of the rule of law. An outline of this principle is that everyone is equal before the law,” Hayut said in a speech at Tel Aviv University.
“Additional foundational principles which manifest our system of law and democracy are: recognition of the constitutional status of the freedoms of man and maintaining judicial review.”
She said that judicial review “plays an important role in the apparatus of checks, balances and brakes designed to defend these freedoms.”
Many judicial decisions, at first glance, are a point of division, Hayut said. Inherent in the social and legal divides that make up the country’s social fabric is that, at first glance, not all legal contests have compromises; inevitably there are sometimes winners and losers, she said.
However, she added that using a longer-term vision, the courts unite all the differing sectors as they provide one fair way for all sides to be heard and judged.
This can unite and give pride to all sectors in supporting Israel as the region’s sole democracy, she said.
Hayut did not explicitly address the court’s fight with the government over African migrant policy, which has precipitated the latest push to circumscribe the court’s powers.
While the court has not issued a final ruling on current petitions before it regarding this matter, all indications are that it is prepared to declare the state’s migrant policy illegal once again – that migrants cannot be deported to Uganda against their will and that the state cannot excessively detain migrants who refuse deportation and whose refugee status has not been determined.
The coalition, on the other hand, is united behind the idea of trying to deport as many migrants as possible to Uganda and to detain those who refuse deportation in order to press them to leave.
Currently, the government is entertaining several proposals for circumscribing the court’s judicial review powers.
Sources close to Mandelblit indicated that while he opposes some of the ideas to restrict the powers of the Supreme Court and does not endorse any of them, if the government decides to go down that road, the Neeman Commission has suggested a minimum override of 70 Knesset votes.
Furthermore, the indication is that he believes it is critical that the details of any such law be negotiated closely with the judicial branch and that the government fully understands all of the details and implications of what it is considering.
Sources understand that this position has been accepted by the government and has been reflected in the decision to hold ongoing meetings on the issue.