The government’s planned judicial reform will “crush” the judicial system, Supreme Court President Esther Hayut warned at the annual convention of the Israeli Association of Public Law on Thursday.
“Israel will soon mark 75 years of independence as a Jewish and democratic state. Unfortunately, if the people who made up this plan have their way, the 75th year will be remembered as the year in which Israel’s democracy suffered a fatal blow,” she said. “This is an unbridled attack on the judicial system, as if it were an enemy that must be attacked and subdued.
“There is no other way to understand the dramatic press conference [Justice Minister Yariv Levin] chose to hold only a few days after taking office, in which he presented his plan for the first time.”
"Anyone who claims that the majority who elected their representatives to the Knesset, thereby gave them an 'open check' to do as they please, bears the name of democracy in vain."High Court of Justice President Esther Hayut
Hayut rejected the government’s assertion that it was acting according to the “will of the majority.”
“Anyone who claims that the majority who elected their representatives to the Knesset thereby gave them an ‘open check’ to do as they please, bears the name of democracy in vain,” she said.
Hayut explained that courts are tasked with protecting human rights, making a court’s independence extremely important to ensure “the rule of the majority does not turn into the tyranny of the majority.”
The justice said Levin’s reforms would take away the legal tools judges use to protect individual rights, including the ability to nullify laws that disproportionately harm human rights – protected by Israel’s Basic Laws – and the reasonableness clause, which allows judges to reject government decisions that have an administrative flaw.
“The planned override clause allows the Knesset, with the support of the government, to enact laws that would harm these rights without hindrance. Therefore, whoever thinks that the override clause ‘overrides’ the court is wrong. In fact, it is about overriding the human rights of each and every individual in Israeli society.”
Hayut said getting rid of the reasonableness clause would open the door for claiming that judges also cannot determine what “reasonable doubt” is in criminal cases. Hayut also rejected claims that the reform is necessary because the courts acted without restraint and irresponsibly.
“To illustrate how false these claims are, I will point out that since the enactment of Basic Law: Human Dignity and Freedom in March 1992, and until today – for over 30 years – the Supreme Court has intervened in 21 laws or articles of law, out of thousands of laws enacted by the Knesset.”
The Supreme Court president pointed out that the rate of law invalidation in courts in the US, Canada, Germany and similar countries is much higher than in Israel, counter to claims by Prime Minister Benjamin Netanyahu, Levin and other members of the government.
“The expectation that the court will stand quiet even in those exceptional cases where the government violates its obligations towards the individual is a dangerous expectation,” warned Hayut. “It contradicts the place of the court in the democratic system of balances, and it is contrary to the biblical commandment instructing the judges of Israel: ‘You shall not fear anyone’ – and in the language of the midrash: ‘You shall not cover your words for fear of anyone.’”
Hayut pointed to a number of cases in which the Supreme Court protected the rights of citizens, including a ban on jailing soldiers for long periods without a hearing; the protection of LGBTQ rights; a ban on the disconnection of the electricity of impoverished or ill people; and the requirement to install shelters at schools near the Gaza Strip, among other cases.
Hayut additionally condemned claims by the government that the Judicial Appointment Committee needs to be changed, as judges “appoint themselves... in hidden rooms and without a protocol.
“The Committee for the Selection of Judges in its current form was enshrined in law already in 1953... A perusal of the Knesset’s statements shows that the committee in its form was established out of a broad consensus of the coalition and the opposition in the Knesset at the time, regarding the need to ensure the independence of Israeli judges.”
Hayut cited then-MK Menachem Begin, the founder of the Likud Party, stating “We are here to ensure the independence of the judges, and for that we must also ensure, if possible, the independence of their members.” And in another place, Begin warned against a situation in which “it is the government that will actually appoint our judges.”
“The baseless claims raised against the existing system for electing judges are intended to cover up the real reason for which the thinkers of the change plan are working, and that is the desire to bring about a complete politicization of the appointment of judges in Israel – by way of establishing a committee for electing judges in which the politicians will have an automatic majority.”
The Supreme Court president stressed that the judicial system is interested in improvements and changes, and expressed concern about the heavy load of cases the system faces each year – as there are only eight judges for every 100,000 citizens.
“The judiciary in Israel currently maintains an effective and responsible judicial review of the actions of the government and the Knesset, and in doing so it plays an important role in the system of checks and balances between the authorities. These checks and balances are the basis of the democratic idea on which the State of Israel was founded.”
Levin: Hayut is inciting protesters and parroting a political agenda
Members of the government led by Netanyahu expressed outrage at Hayut’s criticism of the plan, calling for her to be removed from her position.
Levin condemned Hayut’s criticism, accusing her of trying to “set the streets on fire.”
“It turns out that there is another party in Israel. A party that did not run in the elections that were held only two months ago, who placed herself above the Knesset, above the decision of the people,” said Levin. “Tonight we heard familiar rhetoric from the Black Flag protests. It’s the same political agenda, it’s the same call to set the streets on fire.”
Levin said his reform comes to protect the rights of the minority, stating “democracy is not the tyranny of the minority, imposing its values on the majority through its control of the legal system. The rule of the judge is the opposite of a reformed democracy.”
UTJ MK Yitzhak Pindrus sent a letter to the Ombudsman of the State Representatives in the Courts after the speech, saying Hayut violated the ethics rules of judges.
“In the past, you called to consider removing the chief rabbi of Israel for expressing himself in a similar way.... I am confident that you will not act with bias this time. You will reprimand the president and perhaps even publicly call for her removal.”
The Movement for Quality Government expressed support for Hayut, stating, “This is a dark time in which Israeli judges are required to stand fearlessly against those who are trying to destroy the entire system. We are proud of President Hayut’s words – we stand behind her and behind the judicial system of the State of Israel. We will protect the fortress with our bodies and our lives.”
Rivlin calls on government to be more careful with judicial reform
Former president Reuven Rivlin called for the government to hold discussions with the judicial system to more carefully develop reforms for the system, stressing that “laws must not be enacted out of feelings of revenge or motives other than the thing itself,” according to Yediot Aharonot.
Concerning former High Court of Justice president Aharon Barak, seen by many as the father of the current structure of the judicial system, Rivlin said he sees him as a “teacher and a mentor,” but added that “I didn’t just warn him. I told him – first of all, you made a coup and not a revolution. You created some kind of constitutional regime, in which you are the constitution.”
Rivlin called on Levin not to do what Barak did: “[He] may not have intended, but in the end [he] brought about a coup,” in reference to Barak’s intensive legal reform of the judicial system in the 1990s – something that has drawn ire from all sides of the political spectrum in the past.
"This is not a spillover into the legal system, but a takeover of the legal system. Those who do not understand this are in a very difficult situation."Former president Reuven Rivlin
“Don’t do a counter-coup. Because a counter-coup will lead to another counter-coup,” warned Rivlin. “This is not a spillover into the legal system, but a takeover of the legal system. Those who do not understand this are in a very difficult situation.”
Rivlin added that he agrees with Barak that the reform could put Israel’s democracy in danger.
“People need to sober up. Today the situation in the country is that if you don’t agree with me, then what you say is treason. I mean, there is no dialogue. And the youth is also discouraged. And I say – don’t despair,” said Rivlin.
AG accuses Rothman of misleading MKs with draft bill produced outside law committee
On Thursday, Attorney-General Gali Baharav-Miara accused Knesset Constitution, Law and Justice Committee chairman Simcha Rothman of misleading MKs by circulating a draft bill of planned changes to the role of attorneys-general and legal advisors on the committee's letterhead which the attorney general said could make people think Rothman received legal advice from the committee's legal advisor even though he did not.
In a document sent to members of the Constitution, Law and Justice Committee on Wednesday, the director of the committee wrote that Rothman wants to hold "an open, comprehensive and thorough discussion" concerning the planned reform.
The document was compiled by Shimon Nataf, a professional consultant to Rothman and a member of the Kohelet Policy Forum.
Baharav-Miara argued that the document, which features the committee logo, is presented as a preparation document for the discussion compiled by the legal advisor to the committee as it includes a legal review of the law and judicial rulings.
The attorney-general stressed that the document was compiled without any involvement from the legal advisor to the committee. "In these circumstances, the presentation of a 'platform for discussion' that seeks to present an overview of the existing legal situation, signed by a lawyer who is presented as a 'professional consultant' on your behalf on the committee table, may mislead the members of the committee, giving them the impression that it is a legal opinion on behalf of the legal advisor to the committee. And of course, this is not the case."
Baharav-Miara pointed to section 17 of the Knesset Law which states that the attorney-general is the one tasked with providing legal advice to members of the Knesset. The attorney-general warned that the committee's legal advice team will likely be unable to present a full professional legal picture of the planned reform before the next meeting of the committee as the issue is very complex.
"Indeed, the chairman of a committee may present to the members of the committee a platform for discussion as he deems appropriate, certainly in discussions of principle that he deems appropriate to initiate. However, when the chairman of the committee conducts the discussions with the aim of formulating a bill on behalf of a committee, it is extremely important to provide objective, complete and accurate legal information for the members of the committee," wrote Baharav-Miara.
The attorney-general added that the distribution of the text in the manner Rothman did it sharpens the difficulties presented by the MK's decision to pass the law as a bill presented by a committee instead of as a privately sponsored bill.
Baharav-Miara stressed that "without addressing questions of policy, the review of the existing legal situation included in the 'proposal for discussion' does not, in our opinion, accurately reflect the prevailing legal situation in the State of Israel."