In an extraordinary speech delivered with indignation and fiery rhetoric, Supreme Court President Esther Hayut denounced the new government’s plan to radically overhaul Israel’s judicial and legal system, saying it would deal a “fatal blow” to the country’s democratic identity.
Hayut declared that the sweeping changes to the legal system would fatally undermine judicial independence, give the Knesset a “blank check” to pass any legislation it pleases — even in violation of basic civil rights — and deny the courts the tools needed to serve as a check on executive power.
Justice Minister Yariv Levin, who is spearheading the reforms, lambasted Hayut’s speech, saying it underlined his arguments that the justice system has been politicized, and chastised her for violating ethics rules for serving judges.
Opposition leader Yair Lapid, however, gave Hayut full backing, saying the opposition would “stand by her side in the struggle for the soul of the country” and the attempt to “dismantle” Israel’s democracy.
Hayut’s speech, and the condemnation which followed, comes against the backdrop of heightened societal tensions over the planned legal reforms, and the already severely strained relations between the government and the country’s legal institutions.
“This is an unbridled attack on the judicial system, as if it were an enemy that must be attacked and subdued,” Hayut said at the outset of her address at a conference in Haifa of the Israeli Association of Public Law.
“This is a plan to crush the justice system. It is designed to deal a fatal blow to the independence of the judiciary and silence it,” she continued. “The 75th anniversary of Israel’s independence will be remembered as the year in which the country’s democratic identity was dealt a fatal blow.”
Hayut rejected arguments that Levin’s plans were necessary to uphold the will of the majority, asserting that although majority rule was “a fundamental principle at the heart of a democratic regime,” democracy was nevertheless much more than majority rule.
“Anyone who claims that the majority who elected their representatives to the Knesset, thereby giving them a ‘blank check’ to do as they please, takes the name of democracy in vain,” said the Supreme Court president.
“One of the most important functions of a court in a democratic country is to provide effective protection for human and civil rights in the country,” she continued, adding that the independence of the courts was a critical guarantee of individual freedom.
“It is the guarantee that the rule of the majority does not turn into the tyranny of the majority,” declared Hayut.
She carried on to take specific exception to the government’s intention to pass a High Court of Justice override law, which would greatly dilute the High Court’s power to strike down laws that it deemed to violate basic civil rights.
“The planned override clause allows the Knesset, with the support of the government, to enact laws that would harm these rights without hindrance,” said the Supreme Court president. “In fact, what we are talking about is overriding the human rights of each and every individual in Israeli society.”
Hayut also castigated Levin’s plan to ban the High Court from using the test of “reasonableness” to determine whether administrative decisions are “reasonable” and have been made with the proper consideration of all relevant factors.
She reeled off a long list of examples in which the court had used this principle in the past to uphold critical rights and defend Israeli citizens, including cases in which the right to government welfare benefits, the right to surrogacy services for LGBTQ couples, the right to religious services, and rights to freedom of expression and assembly had all be upheld and asserted by the High Court.
“In other words, if the decisions of the government will be the final word and the court will be without tools to fulfill its role — it will not be possible to guarantee the protection of rights in those cases where government authorities violate those rights, be it through legislation or administrative decision, to an extent that exceeds what is required,” said Hayut.
She continued by denouncing the changes planned to the Judicial Selection Committee, which would give the government complete control over the appointment of judges to all courts, including the Supreme Court, as opposed to the more balanced system in effect since 1953.
“The baseless claims raised against the existing system for electing judges are intended to cover up the real reason for these changes — which is the desire to bring about the 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,” said Hayut.
The Supreme Court president also insisted that the court has, over the years, used its powers of judicial oversight cautiously and with restraint, asserting specifically that it had not made undue use of the test of reasonableness as claimed by Levin and others.
“These are false claims, and the changes detailed in the plan are not only unnecessary in order to balance the branches of government, their implementation is what will do a severe and dangerous violation of the delicate balance between them,” argued Hayut.
She said that since the passage of the Basic Law: Human Dignity and Liberty in 1992, which paved the way for expanded judicial review, the High Court had only intervened in Knesset legislation on 21 occasions “out of thousands of laws passed by the Knesset during the same period.”
Hayut said that top courts in the US, Canada, and Germany had made much greater use of their powers of judicial review and had struck down far more laws than the Israeli High Court.
“We are talking about revoking legal tools that belong to the public, that exist for the public, and that are used by the court for the benefit of the public,” she continued.
Hayut averred that Israel’s judicial authority had used its powers of judicial review “effectively and responsibly,” and by so doing fulfilled its role of serving as an effective check on legislative and executive power.
“The new justice minister’s plan is not one to fix the justice system — it is a plan to crush it,” she declared. “It will severely damage the independence of the judges, and their ability to faithfully fulfill their role as public servants. The significance of this bad plan is therefore to change the democratic identity of the country beyond recognition.”
Levin responded fiercely to Hayut’s attack on his reforms, accusing her of being politically aligned with the opposition.
“It turns out there’s another party in Israel — a party that didn’t run in the elections two months ago, a party that places itself about the Knesset, above the public referendum,” he alleged.
“What we heard this evening comes straight from the ‘Black Flag protests,’ it’s the same political agenda,” he says referring to the anti-corruption protesters that regularly rally against Prime Minister Benjamin Netanyahu. “It’s the same cry to set the streets on fire.
“We didn’t hear statesmanship [from Hayut and Gali Baharav-Miara]. We didn’t hear neutrality. We didn’t hear a balanced legal stance. We heard the words of politicians, stirring up demonstrators.”
Speaking at the same conference, Attorney General Gali Baharav-Miara also strongly criticized the government’s proposals to shake up the judicial system, but struck a less fiery tone than Hayut.
Baharav-Miara said Levin’s proposals will create an “imbalanced system of checks and balances,” and that “the principle of majority rule will push other democratic values into a corner.”
The attorney general also said that the government has failed to present the various pieces of legislation to carry out these reforms to the Attorney General’s Office as is usual for government legislation.
“As jurists who serve the public, we must express our clear professional opinion,” says the attorney general.
She also condemned the vitriolic attacks on state legal advisers and prosecutors, saying such attacks were “irresponsible,” and were giving rise to “aggression” against such legal professionals in courts and other public places.