Chief justice slams ‘belligerent’ political attacks on courts

Supreme Court Chief Justice Esther Hayut on Tuesday hit out at political attacks on the legal system, saying there was no place for belligerent discourse against the judiciary from politicians on the left or the right.

“It is regrettable that various elements from all sides of the political spectrum see fit to use terms such as ‘power,’ ‘breaking,’ ‘destruction’ and the like, when they refer to the judiciary,” Hayut told the audience at the Institute for National Security Studies’ conference in Tel Aviv.

“Criticism directed at the judiciary is legitimate in any democratic state, and harsh criticism from the right and the left is often directed at the judicial branch in Israel, but in my view, belligerent terms have no place in discourse relating to the judicial branch, however penetrating they may be,” Hayut said.

“No system is free of mishaps and failures, but the real test of a well functioning system is its ability to test itself and correct what needs to be corrected,” she added.

While Hayut was careful not to be partisan, the court has clashed with the right much more than with the left in recent years. Justice Minister Ayelet Shaked, along with her New Right co-chair Naftali Bennett, are looking to rein in the power of the Supreme Court, especially its authority to strike down laws as illegal and unconstitutional.

Hayut also said that Israel is not operating on the same moral playing field as terrorist organizations.

“The difference between Israel and the terrorist organizations that are among its enemies is that they do not consider themselves bound by the rules of law or morals, and any means are acceptable in their eyes,” she said.

“The challenges facing Israel in maintaining the rule of law in times of war, and not only during times of calm, are becoming increasingly complex over the years, in light of the changing strategic environment in our region, which is characterized by the weakening of the state framework.”

Hayut also addressed criticism of the court’s intervention in decisions and actions taken by the defense establishment, saying the court must steer clear of any operational decisions and must simply rule on their legality within national and international criteria.

“Israel is under ever-present existential threat since its establishment, and in such a situation, the preservation of basic constitutional principles and human rights is particularly challenging and complex,” she said.

“It is not the role of the court to decide between operational alternatives or to reflect on considerations that require clear professional expertise. The role of the court in this context focuses on the question of whether certain security activity meets the national and international criteria that determine its legality.”

Last October, Hayut lambased lawmakers over their criticism of the court, saying their remarks often bordered on incitement and were fueling a “violent discourse” among the Israeli public.

While acknowledging that “like every other government authority, we are not beyond criticism,” Hayut bemoaned that such criticism of the court has not been condemned or reined in.

Hayut has previously struck out at what she considers efforts to undermine the court’s independence, including last May when she called a bill that would limit the power of the Supreme Court to strike down Knesset legislation it deems unconstitutional an “unprecedented assault” on the judicial branch.