Constitutional crisis looms, as Supreme Court president shows she won’t go quietly

Esther Hayut hits back at coalition’s moves to neuter judiciary, indicating she’ll try to strike down Yair Levin’s revolutionary legislation, rather than being struck down by it

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

President of the Supreme Court Esther Hayut speaks at a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)
President of the Supreme Court Esther Hayut speaks at a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)

As of Thursday evening, the only two potent branches of Israeli governance — the executive and the judiciary — are openly at war.

Two weeks into its time in office, the hard-right government of Prime Minister Benjamin Netanyahu is already busily working on plans to largely neuter the High Court of Justice, the sole hierarchy capable of putting a brake on government abuse and excess.

Last week, Netanyahu’s Justice Minister Yariv Levin presented a highly detailed program to hobble the court — by all but eliminating its capacity to strike down legislation and government decisions; by preventing justices from utilizing the legal concept of “reasonableness” as a standard by which to evaluate lawfulness; and by giving the governing coalition a majority on the committee that selects justices in the first place.

On Wednesday, Levin published his draft legislation, which the coalition aims to rush through parliament in the next two-and-a-half months.

On Thursday night, the High Court hit back.

Court President Esther Hayut, speaking at a law conference, delivered what has to be the harshest speech ever directed by someone in her position at the country’s political leadership.

Where Levin last week accused her and her colleagues of subverting Israeli democracy — “We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us,” he claimed — Hayut accused him and his colleagues of preparing to destroy it.

When the court intervenes, she made clear, it is “to strike down laws that disproportionately harm basic constitutional rights, such as the right to life, to property, to freedom of movement and to privacy, as well as the fundamental right to dignity — and as a consequence the right to equality and the right to freedom of expression.”

Justice Minister Yariv Levin holds a press conference unveiling his plans to overhaul Israel’s judicial system, at the Knesset on January 4, 2023. (Olivier Fitoussi/Flash90)

Where Levin had asserted that the courts arrogantly defy majority public will and have consequently lost the trust of the nation, she asserted that he and his coalition partners were bent on enabling “a tyranny of the majority.”

And where Levin had claimed he was seeking to “correct the judicial system” and strengthen democracy, Hayut called this “cynicism,” and claimed his proposals aim to “deliver a fatal blow to the independence and autonomy of the judicial system and silence it,” thus changing “the democratic identity of the country beyond recognition.”

In TV interviews on Saturday night, one of Hayut’s predecessors, Aharon Barak, having denounced the Netanyahu-backed Levin reforms as marking the beginning of the end of modern Israel, said he would have resigned if they were to have become law on his watch.

“There would be no purpose in me being there, if all I am doing is the prime minister’s will, that of the government, that of the Knesset,” said Barak. “I’d have no existence as an independent authority.”

Hayut on Thursday indicated, however, that if she and Israeli judicial independence are to go down, they will go down fighting.

Built into Levin’s revolutionary legislation is wording intended to render it immune to High Court intervention — to prevent Hayut and her colleagues striking it down, that is, before they are struck down by it.

Inevitably, should the legislation make its speedy way through the Knesset and become law, there will be a rash of petitions to the High Court, claiming that it is ill-conceived, undemocratic and, indeed, unconstitutional. What Hayut indicated Thursday night, including by referring to the court’s obligation to uphold “basic constitutional rights,” was that she and her colleagues fully intend to hear and rule on those petitions.

Levin and Netanyahu, just two weeks in office, have already pushed Israel into a democratic crisis, by formulating legislation that, ultimately, gives the prime minister near-absolute power.

As of Thursday night, the country is also headed into a constitutional crisis, with the High Court unsurprisingly indicating it will not surrender its independence and its responsibilities.

The fact that this is a constitutional crisis in a country that has no constitution only further complicates the fateful struggle.

How might it turn out? Not well, that’s for sure.

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