'The need to evade trial cannot drive this broad reform'

Former chief justice: Netanyahu seeking to ‘destroy’ courts to avoid prosecution

Dorit Beinisch says lawmakers spreading ‘nonsense and lies’ about justice system to mislead public, warns PM against hobbling Supreme Court for personal gain

Marissa Newman is The Times of Israel political correspondent.

Former Supreme Court president Dorit Beinisch (Miriam Alster/Flash90)
Former Supreme Court president Dorit Beinisch (Miriam Alster/Flash90)

Former Supreme Court president Dorit Beinisch on Thursday lashed Prime Minister Benjamin Netanyahu’s apparent plan to drastically curb the powers of the High Court of Justice in a manner that could shield him from prosecution.

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” legislation 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.

Prime Minister Benjamin Netanyahu during the weekly cabinet meeting at his office in Jerusalem on May 19, 2019. (Ariel Schalit/ Various Sources/ AFP)

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.

In a Thursday interview with Israel Radio, 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.

“Be careful before you try to destroy… an impressive system that was built over years,” she warned. “You don’t carry out reforms without substantive consideration and evaluation… The need to evade trial cannot drive this broad reform — it’s unacceptable.”

Beinisch also said she was “shocked” by statements targeting the court and the attorney general, apparently referring to recent comments by Likud MK Miki Zohar, who pledged that the judiciary will soon be “irrelevant.”

Lawmakers are spreading “nonsense and lies” about the justice system to discredit it, she charged.

Prime Minister Benjamin Netanyahu (left) and Attorney General Avichai Mandelblit at a July 2015 cabinet meeting, when Mandelblit was serving as cabinet secretary. (Emil Salman/Pool)

“I don’t know if the public has the means to examine just how much nonsense and lies… are spread about the [justice] system,” she said, specifically referring to claims the courts and attorney general were politically motivated and out to remove Netanyahu from office.

She rejected the idea that the court was overly activist vis a vis the legislature, noting that in the past 25 years, the court had only disqualified 18 Knesset bills, and in most cases the legislation was only partially knocked down.

“In my view, this is a crucial battle, the most important one we have today,” she added of the Knesset bid to lower the standing of the courts.

According to Wednesday’s Channel 12 report, among the legislation’s core elements is that the Knesset will be able to relegislate any law that the Supreme Court has struck down as unconstitutional, requiring a majority of 61 votes in the 120-member Knesset.

The bill will also remove the court’s authority to overturn parliament’s administrative decisions, the TV report said, including decisions to grant Netanyahu or any other Knesset immunity from prosecution. The attorney general has announced that Netanyahu is to be indicted for fraud and breach of trust in all three of the cases against him, and bribery in one of them, pending a hearing scheduled for October. If the planned legislation becomes law before then, Netanyahu would be able to avoid an indictment altogether.

Prime Minister Benjamin Netanyahu, right, with Supreme Court Chief Justice Esther Hayut, at the Mount Herzl cemetery in Jerusalem, November 1, 2017. (Marc Israel Sellem/Pool)

The TV report said that Netanyahu’s Likud party is claiming not be the driving force behind the intended legislation. Rather, Likud sources told the TV channel, the legislation is being pushed by the ultra-Orthodox United Torah Judaism party, which is seeking to prevent the Supreme Court from overturning legislation under which most ultra-Orthodox males are exempted from service in the Israel Defense Forces.

Legal commentators have warned in recent weeks that the proposed Supreme Court “override clause” constitutes the most dramatic constitutional change in Israeli history, shattering the balance between the legislature and the judiciary. In an interview with The Times of Israel last week, Prof. Mordechai Kremnitzer, a leading Israeli criminal and constitutional law expert, warned that “it would be wrong to describe a country as democratic with a law like this.”

Professor Mordechai Kremnitzer (Kobi Gideon/Flash90)

In Israel’s fractious society, where the Knesset frequently shirks its responsibility to protect religious pluralism, civil liberties and the rights of Palestinians, the court has had no choice but to fill the moral and legal vacuum, Kremnitzer said. Maintaining an independent judiciary serves as a counterweight against the danger that a “tyranny of the majority” tramples the rights of those who are not properly represented by the political system, he added.

Removing the court’s judicial review would end that, Kremnitzer said, putting Israel on a path in the opposite direction to that of other Western democracies.

Countering such claims, right-wing politicians in Israel have long sought to curtail the powers of what they regard as an overly liberal and activist court. The court’s powers, they claim, have grown over the years, have no clear constitutional basis, and have enabled it to favor liberal policies and minority rights over the desires of the voting majority.

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.

Raoul Wootliff and Times of Israel staff contributed to this report.

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