Supreme Court president invokes Nazi era in implicit swipe at Netanyahu
Safeguarding judges' independence a 'democratic cornerstone'

Supreme Court president invokes Nazi era in implicit swipe at Netanyahu

Esther Hayut says judicial institutions can’t ‘withstand every attack’; PM said to be seeking legislation that would shatter judicial oversight

Supreme Court President Esther Hayut arrives for a court hearing at the Supreme Court in Jerusalem, March 14, 2019. (Yonatan Sindel/Flash90)
Supreme Court President Esther Hayut arrives for a court hearing at the Supreme Court in Jerusalem, March 14, 2019. (Yonatan Sindel/Flash90)

The chief justice of Israel’s Supreme Court on Tuesday made a speech in Nuremberg, Germany, that expressed implied criticism of Prime Minister Benjamin Netanyahu’s planned judicial reforms and invoked the Nazi takeover of Germany in the 1930s.

“History is not repeating itself,” Esther Hayut clarified at an event hosted by the Israeli German Lawyers Association, “but it gives us the opportunity to learn from it and enables us to see patterns and judge for ourselves.”

A report by the Haaretz daily on Monday said the prime minister was planning to promote a bill that would allow the Knesset to ignore the Supreme Court’s administrative rulings, and would also permit parliament to resubmit laws that have been struck down by the court in the past.

It would thus prevent the court from overturning both Knesset legislation and government decisions on constitutional grounds. According to the report, the planned bill will be included in a legal annex to coalition agreements and government guidelines.

Netanyahu later in the day railed at the “misleading” and “distorted” media reports, but indicated that he thought the bench should not be able to strike down legislation.

Prime Minister Benjamin Netanyahu speaks at an event in Jerusalem honoring the families of Israeli soldiers killed in battle, on April 14, 2019. (Noam Revkin Fenton/Flash90)

Hayut, referring to the 1935 Nuremberg Laws, said that, in the very city where she was speaking, “law and justice reached one of the lowest points in human history,” in the country that had “one of the most progressive constitutions protecting human rights and liberties — the Weimar Constitution.”

As proof that institutions protecting democracy could not “withstand every attack,” Hayut cited a 1933 editorial in a German Jewish newspaper that argued that Adolf Hitler and his newly elected Nazi party wouldn’t be able to carry out their stated plans due to the country’s checks and balances on government power.

“One of the universal lessons we should learn from the historical events I mentioned is that judicial independence, on the institutional and personal level, is one of the most important guarantees that the individual has an address to turn to to protect their rights,” she said.

“The safeguarding of that principle and judges’ independence is therefore one of the cornerstones of every democratic regime,” Hayut continued.

She mentioned the quasi-constitutional 1992 Basic Law: Human Dignity and Liberty, the main legislation protecting human rights in Israel.

“In order for the provisions of this Basic Law to be fulfilled in practice and receive adequate protection, judicial review is needed. And for 25 years, the Supreme Court of Israel has indeed been conducting judicial review of the validity of laws, out of the view that human dignity is the primary right, from which most human rights are derived,” Hayut said.

Supreme Court justices at hearing at about the disqualification of Hadash co-leader Dr. Ofer Cassif (unseen) from running in the elections. on March 13, 2019. (Yonatan Sindel/Flash90)

One of the objectives of the proposed legislation in coalition talks is thought to be a possible Knesset decision to grant Netanyahu retroactive immunity from a series of criminal cases in which he is facing an indictment.

Speculation has swirled that Netanyahu may use his newfound political strength in the wake of the April 9 elections to advance legislation that would grant him immunity from prosecution as long as he remains prime minister, or seek to utilize existing immunity provisions for the same purpose, and enact legislation to prevent the Supreme Court from overturning such immunity.

Opposition politicians and judicial experts have reacted with outrage to the reports.

In a Facebook post on Monday evening, Netanyahu wrote that he has always supported “a strong and independent court — but that does not mean an all-powerful court.”

Left to right, front row: Public Security Minister Gilad Erdan, Finance Minister Moshe Kahlon, Prime Minister Benjamin Netanyahu, and Acting Foreign Minister Israel Katz in the Knesset’s plenary hall during the swearing-in ceremony of Knesset members as a new session opens following the 2019 elections, on April 30, 2019. (Noam Revkin Fenton/Flash90)

“Misleading leaks and distorted commentary published by the media include proposals that are untrue. All this is being done to sow fear and prevent any changes, in an attempt to block the restoration of balance between the branches [of government].”

He said such balance was “required to pass laws that have been struck down in the past, laws the public expects us to pass: the expulsion of terrorists’ families, the death penalty for terrorists and a deportation law for [African migrants].”

In fact, only the deportation of illegal immigrants has been blocked by the courts in the past. The other two bills have not yet cleared the legislative process, having been bogged down by various disagreements and difficulties.

The prime minister is a suspect in three criminal probes in which investigators have recommended graft indictments, including bribery in one of the cases.

Attorney General Avichai Mandelblit announced in February that he intends to indict Netanyahu in all three cases, pending a hearing.

The prime minister denies all the allegations and has sought to delay the hearing, which has been scheduled to take place by July 10.

Netanyahu’s political rivals have warned that such a delay would buy him time to shore up his immunity from prosecution and stave off the indictment.

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

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