Chief justice slams plans to neuter court: Without independence we can’t do our jobs

Supreme Court President Esther Hayut takes on planned radical reforms by incoming coalition: ‘Judicial independence and neutrality… are the lifeblood’

This handout photo shows Suprme Court President Esther Hayut, right, and Justice Minister Gideon Sa'ar, second right, at a ceremony on December 6, 2022. (Israeli Judicial Authority)
This handout photo shows Suprme Court President Esther Hayut, right, and Justice Minister Gideon Sa'ar, second right, at a ceremony on December 6, 2022. (Israeli Judicial Authority)

Supreme Court President Esther Hayut warned Tuesday against any move that would impact the independence of the judiciary, saying that without freedom judges cannot fulfill their mission to the public.

Hayut’s remarks came after a far-right party allied with presumptive incoming prime minister Benjamin Netanyahu submitted a bill that would transform the Judicial Selection Committee, tipping the balance between the judiciary and legislature by putting ultimate power over the appointment of judges in the hands of politicians.

Netanyahu led a bloc of right-religious parties to victory in the November 1 elections and is working at forming a new government to replace that of Prime Minister Yair Lapid.

All the parties in Netanyahu’s incoming coalition have also pledged support for a so-called “override clause,” which would enable MKs to re-legislate laws and decisions struck down by the High Court as undemocratic, constraining and potentially preventing the justices from serving as a brake on the political majority of the day.

Though she did not specifically mention the proposals, Hayut stressed at a ceremony for newly appointed senior judges and court officials that “our loyalty as judges is to the entire Israeli public, and to each and every one of the individuals that make it up.”

“But this mission of ours as trustees of the entire public cannot be realized without maintaining the basic principles that are the lifeblood of every judicial authority in a democratic country, and I mean judicial independence and neutrality — both at the personal and institutional level,” she said.

“I am confident that we will continue to stand firm on guarding the rule of law, when the law, and it alone, is before our eyes,” Hayut added.

Under current law, the nine-member Judicial Selection Committee is composed of four politicians, two representatives of the Israel Bar Association and three Supreme Court justices. The new bill remaking the selection panel, part of a series of far-reaching judicial reforms planned by the expected new coalition, would nix the bar appointees in favor of two lawyers recommended by the justice minister and approved by the government.

The explanation accompanying the bill, submitted by Otzma Yehudit MK Yitzhak Wasserlauf, states that it is aimed at correcting what it called the “moral distortion” of giving unelected bar association members a say in the appointment of judges.

Likud head MK Benjamin Netanyahu seen after coalition talks outside a hotel in Jerusalem, December 5, 2022. (Yonatan Sindel/Flash90)

Likud and its far-right partners Otzma Yehudit and Religious Zionism have heavily criticized the Judicial Selection Committee — which also appoints Supreme Court justices — and have pushed for more radical changes to it.

In lieu of a constitution, judicial appointments are governed by the quasi-constitutional Basic Law: The Judiciary. Critics and legal scholars have warned that moves by right-wing parties to curb the judiciary would deeply harm the system of checks and balances between Israel’s branches of government.

Outgoing Justice Minister Gideon Sa’ar, who also spoke at the ceremony Tuesday, addressed the “override clause,” another significant change planned by the incoming government, which would give lawmakers the power to override the Supreme Court. While acknowledging he has supported a limited reform in the justices’ authority, Sa’ar accused the emerging coalition of advancing a far more radical overhaul to give the government unlimited power.

“A constitutional regime, any constitutional regime — is built on checks and balances. Nowadays, it is a matter of course that it is not true that all power will be concentrated in the hands of one authority, even if it was elected by the majority of the public,” he said.

“What bothers me is that all the proposals … pursue the goal of a government that removes any limitation from it. An executive authority with unlimited and unbalanced power,” Sa’ar added.

Along with the so-called override clause and increasing politicians’ powers in appointing judges, some allies of Netanyahu have also floated legislation that could end his ongoing trial on corruption charges.

In her first public reaction to the emerging reforms, Hayut said last week the courts will “continue to stand strong even in light of the ‘lightning and thunder’ being seen and heard at this time.”

On Monday, the head of the Israeli Bar Association warned against the legal reforms and urged broad public opposition to them.

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