Sa'ar: System needs evolutionary, not revolutionary, changes

AG appears to criticize court override bill proposed by Netanyahu allies

Gali Baharav-Miara says judiciary will treat incoming government the same way as outgoing leadership; state prosecutor raps potential efforts to curb his office’s powers

Attorney General Gali Baharav-Miara at a ceremony held for outgoing Supreme Court judge George Karra, at the Supreme Court in Jerusalem on May 29, 2022. (Yonatan Sindel/Flash90)
Attorney General Gali Baharav-Miara at a ceremony held for outgoing Supreme Court judge George Karra, at the Supreme Court in Jerusalem on May 29, 2022. (Yonatan Sindel/Flash90)

Attorney General Gali Baharav-Miara seemed to push back Tuesday against calls among members of the likely incoming government for legislation that would allow the Knesset to override Supreme Court rulings.

“No authority or person is above the law,” Baharav-Miara said at a Justice Ministry event in Eilat. “Separation of powers, equality for all, governmental decency and looking out for minority rights — those are the foundations of the system.

“Democracy and the independence of the law enforcement and judicial systems are inseparable. Without one, the other does not exist.”

She also stressed justice officials would treat the new government, which is expected to be led by Likud chief Benjamin Netanyahu and include ultra-Orthodox and far-right lawmakers, exactly as it treated the outgoing government that appointed her.

“The definition of our positions and the manner in which they are performed do not depend on the identity of the political leadership or the legal system at a given time,” Baharav-Miara said.

“At any time, our job is to help the government implement its policies and advance the State of Israel within the boundaries of the law,” she added. “The DNA of a public legal system based on Jewish and democratic values is timeless.”

Amit Aisman at a ceremony at the Justice Ministry on June 28, 2021 (Yonatan Sindel/Flash90)

State Attorney Amit Aisman also spoke at the conference, coming out against potential efforts by the next coalition to curb the powers of his office. The state prosecution has been heavily criticized in recent years by Netanyahu and his allies for indicting the Likud leader in a trio of graft cases. Netanyahu has claimed without evidence that the trial is part of a “witch hunt” by a leftist prosecution conspiring with police, the media and the political left.

“A true and strong democracy needs ruling bodies that are free of corruption,” Aisman said. “Weakening the State Attorney’s Office and hurting our public legitimacy will inevitably lead to harm to the rule of law, and as a result will harm Israeli democracy.”

He said the justice system needs to be better at acknowledging mistakes and willing to accept “justified” criticism, but added that contrary to frequent criticism voiced by Netanyahu allies, “our motives are void of any ulterior motive. The evidence alone is on our minds — whoever the suspect, whatever the offense.”

Justice Minister Gideon Sa’ar attends a ceremony at the Ministry of Justice in Jerusalem, June 28, 2021. (Yonatan Sindel/Flash90)

Justice Minister Gideon Sa’ar, who will be replaced once the new government is sworn in, slammed the judicial reforms proposed by members of the incoming coalition — chief among them Religious Zionism party leader Bezalel Smotrich — despite being a prominent proponent of judicial reform himself.

“I believe that changes should be made,” Sa’ar said, but added that this should be done “carefully and responsibly.”

“I’ve previously defined this as evolutionary changes, rather than revolutionary changes. Changes that are based on our legal and constitutional traditions,” he said.

Sa’ar criticized efforts to legislate an override clause — which would allow a majority of Knesset members to overrule High Court decisions — and to change the makeup of the Judicial Appointments Committee, which selects Israel’s judges and Supreme Court justices to increase the coalition’s relative power. These reforms are reportedly being pushed by Netanyahu’s coalition partners as conditions for joining the government.

“[Having a] court override with 61 [lawmakers] alongside a political takeover of the Judicial Appointments Committee won’t create a balanced ruling system,” Sa’ar said. “It will focus more power in the hands of the government and will neuter the judiciary. This is a bad, unbalanced plan that in my view stands in contrast to the interest of Israel and its citizens.

It’s also unnecessary, Sa’ar added, because a 2008 change he advanced had already created sufficient balance in the selection of Israel’s top judges, and “there is no need to transform the selection into a blatantly political affair.”

Likud head Benjamin Netanyahu (center) speaks with Religious Zionism chief Bezalel Smotrich (second from left) during informal coalition talks in Jerusalem on November 6, 2022. (Courtesy)

Ultra-Orthodox parties are reportedly eager to see the override clause passed into law, as they hope to implement a number of changes as part of the next government that would face High Court challenges, including new legislation enshrining community members’ exemption from national service. The courts have in the past ruled that national service must be shared equally among all eligible citizens.

Passing legislation enabling the Knesset to override High Court rulings is also a top priority for the far-right Religious Zionism party, two of its incoming MKs said last week.

There is said to be growing concern among the far-right and religious parties that Netanyahu is backing away from passing the controversial override legislation, which critics warn could neuter the High Court. Channel 12 news has reported, without citing sources, that Netanyahu does intend to allow the override bill to proceed and may only be signaling hesitation as a negotiation tactic.

Netanyahu began informal talks on forming his next government on Sunday, though he has not yet been officially handed the mandate by President Isaac Herzog.

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