Rejects talks 'until legislative abominations withdrawn'

Former attorney general: High Court must strike down ‘regime coup’ laws if passed

In impassioned speech, Avichai Mandelblit says it would be court’s ‘duty’ to annul legislation, which would otherwise ‘abolish’ Israel’s liberal democracy

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Former attorney general Avichai Mandelblit speaks at the the Institute for National Security Studies annual international conference, February 28, 2023. (Yair Valer)
Former attorney general Avichai Mandelblit speaks at the the Institute for National Security Studies annual international conference, February 28, 2023. (Yair Valer)

Former Attorney General Avichai Mandelblit described the government’s judicial overhaul program on Tuesday as “a regime coup” and insisted that if the proposed legislation is approved by the Knesset, the attorney general and the High Court of Justice would have “a duty” to strike it down.

Mandelblit’s explosive comments, which if heeded by the High Court would lead to a full-blown constitutional crisis between the government and the judiciary, come as the Knesset Constitution, Law and Justice Committee is set to approve on Wednesday the next stage of the government’s radical legal shakeup for a first reading in the Knesset plenum.

The coalition is advancing legislation that would give the government complete control over all judicial appointments in Israel, including the Supreme Court; would largely eliminate the High Court’s capacity to strike down legislation, even if it violates Israel’s Basic Laws; and allow the Knesset to pass legislation that is immune to High Court review from the outset.

This legislation is being passed as quasi-constitutional Basic Laws, while also containing language explicitly banning the High Court from hearing and ruling on appeals against it.

Should the High Court therefore decide to hear petitions against the laws, or even strike them down, it would be doing so in direct defiance of the government and legislature, a situation that would lead to an unprecedented constitutional crisis and possible collapse of the rule of law.

In a fiery speech at the Institute for National Security Studies at Tel Aviv University on Tuesday night, Mandelblit, a former close associate of Prime Minister Benjamin Netanyahu, denounced the government’s judicial overhaul package as “regime change” which he said would end Israel’s liberal democratic form of government.

Prime Minister Benjamin Netanyahu, left, speaks with then-cabinet secretary Avichai Mandelblit, later attorney general, during a cabinet meeting in Jerusalem, September 21, 2014. (AP/Menahem Kahana, Pool/File)

“We are experiencing a regime coup, not so-called legal reforms,” said the former attorney general, who went on to assert that the “founding fathers” of the nation had set up the institution of the attorney general and the High Court of Justice as “two lines of defense” to protect democratic liberty in Israel.

“What laws are they advancing these very days? The precise laws that will damage the independence of the legal institutions and abolish their role as democratic safeguards in the State of Israel. The politicization of judicial appointments, the elimination of their ability to strike down a Basic Law, the abolition of the professional independence of legal advisers to government ministries,” said the former attorney general.

Therefore, he argued, it would not merely be the right of the attorney general and High Court “to annul all acts of legislation that come to abolish the liberal democratic regime in Israel, but it will be their duty to do so.

“And I trust them that these two lines of defense will not be breached and they will fulfill their legal duty in the spirit of the commandments of the founding fathers.”

Mandelblit said he believed the legal and judicial systems could be reformed, and said he would support a High Court override clause, changes to the matter of who has standing before the High Court, and other areas of concern.

Former Attorney General Avichai Mandelblit attends a Conference of the Institute for National Security Studies (INSS), in Tel Aviv, on December 28, 2022. (Avshalom Sassoni/Flash90)

But, he said, the current government proposals would “totally abolish the independence of the legal system in the State of Israel” and its liberal democratic nature, and said therefore that the opposition should not enter into any form of dialogue with the government “until the legislative abominations are totally withdrawn and annulled.”

Following lengthy sessions in the Constitution Committee on Tuesday, the bill for restricting judicial review and allowing the Knesset to pass legislation immune to judicial review is set to be voted on in committee Wednesday morning for passage to the Knesset plenum for a first reading.

That first reading could take place as early as next week, and the legislative path to full passage into law is very short from there.

Numerous demonstrations are scheduled to be held around the country on Wednesday in protest at the government’s legislative agenda, in what organizers have deemed a “day of disruption.”

MK Simcha Rotman, head of the Constitution, Law and Justice Committee, left, and legal adviser to the committee Gur Bligh at a committee meeting at the Knesset in Jerusalem, February 28, 2023. (Yonatan Sindel/Flash90)

During Tuesday’s Constitution Committee discussion, the panel chairman and one of the overhaul’s architects, MK Simcha Rothman, drew outrage by assailing the committee’s legal adviser Gur Bligh and saying he was acting “like an opposition member.”

As Rothman was bringing an example from Canada’s judicial oversight on parliament, Bligh interjected and noted that while Rothman is advancing legislation handing the government total control of judicial selections, Canada’s government doesn’t enjoy such a majority in its advisory committee on judge selection.

Rothman retorted: “If you hijack the discussion to the Judicial Selection Committee, or if you think your job is to correct every remark I make and to open a side discussion… I will interrupt you.” He later said he was limiting Bligh’s speaking time since the legal adviser was “acting like an opposition member.” When Bligh noted that a legal clause letting the Knesset re-legislate laws struck down by the High Court would enable harm to human rights, Rothman claimed that was “a political remark.”

After the remarks drew angry condemnation from opposition members who accused Rothman of “silencing” his own legal adviser, Rothman later apologized and said: “The tone and content of the things I said were wrong.”

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