President of the Supreme Court Justice Esther Hayut responded this evening to the new government’s proposals designed to weaken the power of the Supreme Court to review Knesset legislation and government decisions.
“In fact, this is an unrestrained attack on the legal system, as though it were an enemy to be stormed and subdued,” she said. “Cynically enough, those who thought up this plan call it a plan ‘to fix’ the legal system. And I say, this is a plan to dismember the legal system. It is intended to land a mortal blow on the independence and impartiality of the judicial branch of government and to turn it into a silent branch.
“This conclusion,” Hayut said, “arises both from the way in which the minister chose to present his plan, and from its content and substance. There is no other way of understanding the dramatic press conference that the minister chose to convene just a few days after taking up his post, at which he first presented his plan”
Hayut was referring to the press conference called by Minister of Justice Yariv Levin a week ago.
“As I have stated more than once, judicial independence and impartiality are the court’s life breath, and without them Israel’s judges will not be able to fulfil their tasks as servants of the public and its trustees,” Hayut continued.
“In the past few days we have all heard that the main grounds on which the plan is justified is the will of the majority and the decision of the majority. Indeed, ‘majority rule’ is a fundamental principle that lies at the basis of a democratic regime, but democracy is not just the rule of the majority. Anyone who claims that the majority that elected its representatives to the Knesset thereby gave them a blank check to do whatever they wish bears the name of democracy in vain.
“One of the clearest tasks of a court of law in a democratic state is giving effective protection to human rights and citizens’ rights in the state. An independent, impartial court is therefore one of the most important guarantees of the freedom of the individual of which Jabotinsky spoke. It is the guarantee that the rule of the majority will not become oppression by the majority.”
Of Levin’s plan, Hayut said, “It seeks to remove from the judges’ hands the legal tools that serve them in protecting the rights of the individual and the rule of law. The plan speaks of an override clause that will deny the court the possibility of striking down laws that disproportionately harm constitutional human rights, among them the right to life, to property, to freedom of movement and to privacy, and the fundamental right to dignity and, deriving from it, the right to equality, to freedom of expression, and so forth.
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“The override clause gives sanction to the Knesset, supported by the government, to legislate, undisturbed, laws that will harm human rights. Anyone who thinks that the override clause ‘overrides’ the court is mistaken. In actual fact, we are talking about overriding the human rights of every single individual in Israeli society.
“Another important legal tool that the plan seeks to take away from the judges is the reasonability test by virtue of which, in appropriate cases, the court disqualifies decisions of government agencies in which there is some administrative flaw – for example, of arbitrariness, ignoring of relevant considerations, or incorrect balancing of relevant considerations.
“It seems to me that, down the years, the court has demonstrated that it does behave with restraint and responsibility and does not make unnecessary use of these tools. Those who side with the plan for change try to paint a different picture as justification for implementing their plan. But the facts tell the truth and show that these are empty claims, and that the changes set out in the plan are not only not required in order to create a balance between the branches of government, but their implementation is what will upset the delicate balance between them, severely and dangerously.”
“It will not be possible to ensure protection of rights”
“The legal tools that the plan for change seeks to abolish will in effect deny the court the ability to carry out effective judicial oversight, in reliance on which every citizen and resident can raise before the court claims against and opposition to actions by government authorities. This means denying legal tools that belong to the public, that exist for the sake of the public, and that are utilized by the court for the benefit of the public. With the aid of these tools, the court gives aid to anyone who has been wronged and who deserves redress, and preserves the rule of law and human rights that are the fundamental principles of democracy. In this sense, the theoretical concepts of striking down laws and reasonability translate directly into practical steps that affect the lives of every citizens and resident of the state.
“Whoever tells you ‘no more striking down laws’ actually means: no more prohibiting the arrest of soldiers for days without bringing them before a court, as the court ruled in the Tzemah case; no more protection of the right of a car owner to receive income supplement, as the court ruled in the Hassan case; no more realization of the right of single-sex couples to parenthood and a full family life, as the court ruled in the Arad-Pinkas case.
“And anyone who tells you ‘no more disqualification of decisions marred by extreme unreasonableness’ actually means: no more prohibiting cutting off electricity to citizens in financial or medical difficulty, as the court ruled in the Moisa case; no more reinforcement of all educational institutions near the Gaza border, as the court ruled in the Wasser case; no more cancellation of severe restrictions on freedom of political expression in the press and in demonstrations, as the court ruled in the Schnitzer case, and in many other cases; no more obliging a local authority to build a mikveh (ritual bath) for religiously observant women in a settlement with a secular majority, as the court ruled in the case of Kfar Vradim; no more protection of the right of children with special needs to receive free special education, even when they are integrated into the regular education system, as the court ruled in the Yated case. No more, and these are just a few examples.
“In other words, if government decisions are the end of the matter, and the court is deprived of the tools for fulfilling its function, it will not be possible to ensure protection of rights in cases in which government agencies infringe them in an uncalled for way through legislation or administrative decisions.”
“A critical blow to the independence and impartiality of judges”
“Unfortunately,” Hayut continued, “the welter of initiatives breaking on us like a flood, and in haste, does not end with these blows, but it also contains a deep structural change in the composition of the committee for selecting judges and in the way the committee works.
The plan of the new minister of justice is not a plan for fixing the legal system – it’s a plan for dismembering it. It will strike a critical blow against the independence and impartiality of the judges and their ability to fulfil faithfully their roles as servants of the public. This bad plan thus means a change in the democratic identity of the country, making it unrecognizable. Minister, this is not the way,” Hayut concluded.
Justice Hayut was speaking at a conference of the Israeli Association of Public Law in Haifa. Minister of Justice Yariv Levin was scheduled to come to the conference but he cancelled his participation. The present of the association, former deputy president of the Supreme Court Salim Joubran said at the opening of the conference, “The new government has presented far-reaching changes. The proposals it has laid down leave no rom for doubt. The government wishes to lead a revolution, or perhaps a coup, in public law in Israel.”
Leader of the Opposition Yair Lapid said in response to Hayut’s speech, “I second every word that the President of the Supreme Court, Justice Esther Hayut, said. ‘Democracy is not just rule of the majority, the majority did not give anyone a blank check to do whatever he likes.’ We shall stand together with her in the struggle over the soul of the country and against the attempt to dismantle Israel democracy.”
Former minister of justice Gideon Sa’ar tweeted, “President Hayut, in an excellent speech, clearly explained the severe blow to rights and freedoms of the citizens of Israel that will ensue if the plan to dismember the justice system is realized. As I warned in the election campaign, this a move to change the regime in Israel. All those who love freedom, whatever their political views, must unite in the struggle for the sake of Israel’s future.”
Coalition chairperson MK Ofir Katz attacked Hayut’s speech. “A complete speech about the end of democracy, and Hayut did not see fit to mention even once that the system needs any kind of repair. ‘Open to criticism’ is an empty slogan. The speech demonstrated two things: why public confidence in the system is at a low, and how necessary it is to promote this reform,” he said.
Published by Globes, Israel business news – en.globes.co.il – on January 12, 2023.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.
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