Israel's Chief Justice Warns Government in Landmark Speech: Judicial Branch 'Under Unprecedented Attack'

Supreme Court President Esther Hayut says bill curtailing the top court's power threatens the human rights of 'every individual in Israeli society'

Supreme Court President Esther Hayut, May 7, 2018.
Emil Salman

Israel's judicial branch is under an unprecedented attack that threatens to irreparably damage its independence, Supreme Court President Esther Hayut said on Monday, specifically warning that a bill to curtail the High Court's power will target human rights throughout Israeli society.

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In a swearing-in ceremony for new judges, Hayut said the bill, which would enable the Knesset to reenact laws struck down by the High Court of Justice, will eliminate protection for human rights and allow laws targeting those rights to pass.

The bill will not "bypass" the court, she said; "In truth, it would bypass the human rights of every individual in Israeli society."

Hayut called for the bill to be removed from the public agenda. People may call to regulate the relations between the three authorities, but it cannot be done through harmful legislation, she said. "Such legislation regulates nothing and balances nothing," Hayut added. "It voids the Basic Law. The cynical use made of the problem of infiltrators as an excuse to legislate such a bill cannot hide its destructive significance."

Hayut compared the situation in Israel with the United States. In the 25 years since the constitutional revolution, Israel has voided 18 laws or articles in laws; during that time, the United States voided 50 federal laws, she said. Further international comparison shows that Israel has one of the most restrained courts when it comes to voiding laws that violate the constitution.

"The same conclusion can be reached from studying the percent of constitutional petitions that the Supreme Court has accepted versus the percent of constitutional petitions that the court rejected throughout the years," Hayut said. It intervened in 18 out of 320 laws that were enacted, which completely debunks the arguments that the court meddles too much with legislation in the Knesset, she said.

On the claim that the High Court usurped the power to void laws, though the law gives it no such power, Hayut said that the American constitution does not state that the Supreme Court can nix laws that contravene the constitution. "During the 25 years since Israel enacted the Basic Law for Human Dignity and Liberty, the U.S. Supreme Court wielded its power to cancel laws at almost three times the rate of the Israeli court," Hayut said.

The specious claim that the court meddles too much was embraced by biased campaigns designed to advance legislation to enable the Knesset to bypass or override High Court rulings, Hayut said. "The meaning of enacting an article like that is simple: voiding the constitutional protection of human rights anchored in the Basic Law for Human Dignity and Liberty," she said.

Speaking after Hayut, Justice Minister Ayelet Shaked began by quoting former Supreme Court President Moshe Landau (1912-2011), who said in 1996 regarding mutual relations between the Knesset and the courts, that the state had reached a watershed. "This obstacle must return to the Knesset now," he said. "We have no other body that can express the will of the people, and the Knesset cannot evade its responsibility any more. It is the Knesset's duty to clearly say what it has to say using the language of the law," he said.

"Yesterday, after more than 20 years, the State of Israel took a significant step forward in realizing his vision," Shaked said. "I believe that the Knesset will map out the mutual relations between the authorities. It is a necessary move that will ultimately restore the public's faith in the court system to the heights before Landau's speech."

On Sunday, the Ministerial Committee for Legislation on backed the bill, which now heads to the Knesset for three votes.

Prime Minister Benjamin Netanyahu initially wanted to postpone the vote, but ultimately refrained from using his Likud party’s veto power to push off discussion of the bill after Habayit Hayehudi leaders threatened not to vote with the coalition.

The first of three Knesset votes on the bill is expected Wednesday. Moshe Kahlon, leader of the Kulanu party which is also a part of the governing coalition, instructed his party's lawmakers to vote against the bill – although Yoav Galant (Kulanu) supported the bill in his capacity as construction and housing minister. 

Hayut sees protecting the independence of the High Court as her mission. In an address for the state’s 70th anniversary, she said: “We have to remember that one of the necessary guarantees for [democracy] is preserving an independent, professional and unbiased judiciary, which carries out judicial review that protects the constitutional principles of the system.”