Bid to stifle court akin to those of pre-Nazi Germany, 98 retired judges say

Bid to stifle court akin to those of pre-Nazi Germany, 98 retired judges say

Ex-jurists from all levels sign open letter protesting reported efforts by PM to pass legislation allowing Knesset to override High Court veto, as he seeks to safeguard immunity

Jacob Magid is the settlements correspondent for The Times of Israel.

Prime Minister Benjamin Netanyahu speaks during a ceremony held at the Yad Vashem Holocaust Memorial Museum in Jerusalem, as Israel marks annual Holocaust Remembrance Day, May 1, 2019 (Noam Rivkin Fenton/Flash90)
Prime Minister Benjamin Netanyahu speaks during a ceremony held at the Yad Vashem Holocaust Memorial Museum in Jerusalem, as Israel marks annual Holocaust Remembrance Day, May 1, 2019 (Noam Rivkin Fenton/Flash90)

Ninety-eight retired judges signed an open letter on Thursday that compared the current environment, in which Prime Minister Benjamin Netanyahu is reportedly seeking to drastically curb the powers of Israel’s High Court of Justice, to the situation in pre-Nazi Germany.

Referencing the words of the late German-born Israeli chief justice Alfred Witkon, the ex-jurists said that “there have been throughout history countries with democratic regimes where movements were established that used the rights granted to them in order to carry out destructive activities to protect themselves.”

The exact quote given by Witkon in a 1964 High Court ruling stated, “more than once in history have fascist and totalitarian movements risen to establishment in  proper democratic regimes, where they used all the rights of freedom of speech, press and association granted by the state in order to carry out destructive activities to protect themselves. Anyone who saw this during the days of the Weimar Republic [the German government from 1918-1933] will not forget this lesson.”

Alfred Witkon (Courtesy)

The list of dozens of retired judges included ex-Supreme Court justices Elyakim Rubinstein and Ayala Procaccia as well as the former presidents of the National Labor Court and presidents of district courts.

“We, 98 retired judges from all the judicial courts in Israel, who have dedicated our lives to justice, hereby call for the defense of the foundations of democracy and the legal system in Israel,” the letter stated. “The justice system is responsible for safeguarding the delicate balances required to safeguard fundamental values ​​and protect human rights wherever they may be; and the reduction of the powers of the courts in any form constitutes a severe violation of the rule of law.”

“We call on the public to take the necessary steps to strengthen the judicial system so that it can protect democracy,” the judges wrote.

Former Vice President of the Supreme Court of Israel Elyakim Rubinstein attends a ceremony in Jerusalem on October 26, 2017. (Yonatan Sindel/Flash90)

According to a television report on Wednesday night, Netanyahu and his intended new coalition partners have agreed that the incoming government will legislate a far-reaching constitutional change to rein-in the oversight role of the Supreme Court, giving Knesset members the authority to re-legislate laws that the court has struck down, and preventing the court from intervening in administrative decisions.

Provisions for a particularly wide-ranging version of the so-called override clause will be included in the coalition agreements that are currently being negotiated by Netanyahu’s Likud party and its various intended coalition partners, Channel 12 news said.

In addition to its far-reaching constitutional implications, such a law is of immense potential personal significance for Netanyahu, who is facing prosecution in three corruption cases, and is widely expected to ask his fellow Knesset members to vote in favor of giving him immunity from prosecution, as is possible under existing Israeli law.

While in the current balance between the legislature and the judiciary, the Supreme Court would likely overturn such a Knesset decision, the legislation mooted by the incoming government would deny the court the right to do so, allowing Netanyahu to escape prosecution.

Former Supreme Court president Dorit Beinisch at the President’s Residence in Jerusalem, on November 21, 2017. (Hadas Parush/Flash90)

In a Thursday interview with Israel Radio, former Supreme Court president Dorit Beinisch accused Netanyahu of allowing his personal legal woes to trump the public interest in his quest to hobble the court in order to safeguard his immunity.

“I want to say with sadness that if it’s true — and it appears to be true — that this is coming from the prime minister… likely because of his personal interests, the tables have turned and there is a serious campaign that truly accuses the justice system [of misconduct],” she said.

Beinisch said the justice system was open to some government-spearheaded reforms, but not ones that stem from personal interest.

Also on Thursday, a former justice minister and veteran Knesset member for the ruling Likud party warned that the policies toward the justice system supported Netanyahu’s likely next coalition could turn Israel into a dictatorship, and argued that they are diametrically opposed to the policies promoted for decades by Likud.

Dan Meridor — who held several ministerial posts under Netanyahu during his 21 years as a lawmaker between 1984 and 2013 — joined former Likud ministers Benny Begin and Limor Livnat in coming out publicly against the premier’s push to curb the authority of the High Court, and in the process, safeguard himself immunity from prosecution in the three graft cases against him.

But Meridor issued the most scathing criticism of his former political ally’s planned moves, which reportedly include a bill allowing lawmakers to overrule administrative decisions by the High Court, telling Army Radio that they would “change the regime system.”

Critics of the court have long argued for some form of an “override clause,” to put an end to what they describe as the overly aggressive activism of the judiciary in recent decades.

Attorney Yossi Fuchs, who has filed numerous petitions against the court, said that the proposed law “is not an upheaval but rather a restoration of the sanity and balance required between the legal system and the Knesset.”

Supreme Court Justice Hanan Melcer (C) arrives at the High Court of Justice in Jerusalem for a hearing about public transportation on Shabbat, on September 11, 2017. (Yonatan Sindel/Flash90)

In a Facebook post last week, Netanyahu wrote that he has always supported “a strong and independent court — but that does not mean an all-powerful court.”

Last week, Likud said the coalition agreements would not include provisions for legislation to change Israel’s existing immunity laws, and reports in recent days have indicated that Netanyahu believes he will be able to secure immunity from prosecution under the existing legislation, and has thus shifted his focus to legislation that would prevent Supreme Court intervention on the immunity issue.

Israel’s main opposition Blue and White party is organizing a demonstration in Tel Aviv on Saturday against what it insists are the prime minister’s efforts to evade prosecution via new legislation, and the planned curbing of the Supreme Court’s authority.

Times of Israel staff contributed to this report.

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