Herzog: Independent judicial system is cornerstone of democracy, must be defended

President hails ‘moment of power’ as citizens gain understanding of how judiciary shapes character of state; IDF’s top lawyer: Supreme Court protects IDF in international arena

President Isaac Herzog speaks during a ceremony at the Tel Aviv Stock Exchange on July 17, 2023. (Avshalom Sassoni/Flash90)
President Isaac Herzog speaks during a ceremony at the Tel Aviv Stock Exchange on July 17, 2023. (Avshalom Sassoni/Flash90)

President Isaac Herzog and the Israel Defense Forces’ top lawyer came out in support of the Supreme Court on Monday, with the head of state saying the judicial system must be protected “at all costs,” amid increasing coalition attacks on the attorney general and as the country heads toward a showdown between the government and judicial system that could spark a constitutional crisis.

“The independence and strength of the courts, the legal advisers, the prosecutor’s office and all the other departments are the cornerstones of any democratic society,” Herzog said in a prerecorded speech at a Bar Association conference.

“We must protect and defend them from all,” he said.

Herzog also described the situation as one of a “tremendous moment of power” as the country’s citizens have gained an understanding during the recent upheavals of the importance of the legal system, and the “mighty influence the authority vested in the judiciary has in shaping the character of the state, and establishing its future.”

“Every citizen became a knowledgeable jurist. This is a tremendous moment of power,” Herzog said, noting that he and his wife are both lawyers.

The president, who hosted the now-frozen compromise talks on judicial reform, also said he was still “hopeful” that broad agreements would be reached between the coalition and the opposition.

Supreme Court President Esther Hayut (center) and Supreme Court justices arrive for a court hearing at the court in Jerusalem to hear petitions against the so-called ‘Tiberias Law,’ on July 30, 2023. (Yonatan Sindel/Flash90)

Herzog’s speech to the Bar Association — whose leadership elections play a key role in the makeup of the committee that selects new judges — came a day after Attorney General Gali Baharav-Miara called for the High Court of Justice to strike down a government law limiting judicial review, an unprecedented step for the court which has so far balked at revoking amendments to the country’s quasi-constitutional Basic Laws.

The attorney general has refused to support the government’s position on the legislation, in itself a controversial step, and the government has obtained independent counsel to argue its case in the High Court.

Hours later, Justice Minister Yariv Levin of the ruling Likud party — and the architect of the judicial overhaul — complained that while working with Baharav-Miara was very difficult, firing her would be “very problematic” and was not yet on the agenda.

“Firing her is very problematic, not simple, and at the moment it’s not on the agenda, but I don’t know what will be tomorrow — every day a new record is broken.”

Attorney General Gali Baharav-Miara arrives to casts her ballot for the head of the Israeli Bar Association in Tel Aviv on June 20, 2023 (Tomer Neuberg/Flash90)

Asked when he plans to convene the Judicial Selection Committee — which he is seeking to radically alter — Levin said he will “convene it the day that it has worthy membership.”

Levin has sparred with Baharav-Miara on this issue as well. On Sunday, she approved a request by Levin to use independent legal counsel, rather than the Attorney General’s Office, to represent his position in an upcoming High Court of Justice hearing over his refusal to convene the Judicial Selection Committee. She has indicated that she does not believe there is any legal justification for his position not to convene the committee.

The attorney general and her staff serve as the official legal counsel to the government and its ministers in legal proceedings in court.

If the attorney general opposes the government’s position and refuses to defend it in court then the relevant minister can request independent counsel, but the attorney general can refuse the request.

The hearing is scheduled for Thursday but the coalition is seeking a delay.

Prime Minister Benjamin Netanyahu (left) and Justice Minister Yariv Levin vote on the “reasonableness” law in the Knesset, July 24, 2023. (Yonatan Sindel/Flash90)

The reasonableness limitation law, an amendment to Basic Law: The Judiciary, was approved in the Knesset in July. It prohibits the High Court from using the reasonableness standard to annul governmental and ministerial decisions and actions on the basis that they are unreasonable.

Prime Minister Benjamin Netanyahu, Levin, and other proponents of the law argue it was necessary to prevent the unelected court from imposing its worldview on the government elected by the majority.

Detractors say that it removes an important tool in the court’s ability to review government actions that could harm the independence of key law enforcement officials, the legitimacy of elections, and individual rights.

Meanwhile, some reservists and military officials have opposed the reasonableness law on the grounds that it will make IDF officers vulnerable to criminal prosecution by international legal bodies.

IDF’s top lawyer: Independent top court is vital security interest

At the Bar Association conference, the Israel Defense Forces’ top lawyer Maj. Gen. Yifat Tomer-Yerushalmi highlighted the role the Supreme Court plays in strengthening the military.

“Some criticize the judicial system, and especially the Supreme Court, and claim that it harms the IDF or weakens it. The opposite is true,” Tomer-Yerushalmi said, relating to the independent court’s vital role in protecting the IDF from intervention by international legal forums.

IDF Military Advocate General Gen. Yifat Tomer-Yerushalmi speaks in Eilat, May 23, 2022 (screenshot Facebook Watch)

“The [court’s] independent and professional oversight and supervision make it possible to verify that the actions of the IDF are in line with the provisions of Israeli and international law,” she said.

“The international legal legitimacy effort of the IDF is greatly aided by the aura of protection provided by the judicial system, and in particular by the professional and independent status enjoyed by the Supreme Court in the international arena, a status acquired after decades of ruling on the most complex security issues: targeted countermeasures, open fire regulations, the route of the security fence and other tools for the fight against terrorism,” Tomer-Yerushalmi said.

“Against this background, I would like to say explicitly: Measures that may harm — or are perceived as harming — the judicial system being independent, professional and effective may crack the protective aura that the judicial system provides to the military, and harm the security interests of the State of Israel, the IDF, and those who serve the IDF in the international arena,” she said.

Tomer-Yerushalmi said the military was working to present the position of the IDF on the matter to the political echelon, so that there was an understanding of the impact on the military of the steps that have already been taken.

The conference was also addressed by Israel Police Chief Kobi Shabtai, who said that there have been seven million people at the 35 weeks of protests against the judicial overhaul.

“The conduct of the Israel Police while handling the protests deserves to be recorded in the pages of history,” Shabtai said.

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