Hayut: Justice minister plans ‘fatal blow’ to judicial independence, wants to change Israeli democracy ‘beyond recognition’

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

Supreme Court President Esther Hayut attends a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)
Supreme Court President Esther Hayut attends a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)

“Israel this year will make 75 years of independence as a Jewish and a democratic state,” Supreme Court President Esther Hayut continues. “This is an important milestone in the life of the state.” But should the new government’s plans to radically alter Israel’s legal and justice system be implemented, the 75th year “will be remembered as the year in which Israel’s democratic identity suffered a fatal blow.”

Noting that democracy isn’t solely the rule of the majority, she says: “Those who claim that the majority that elected its representatives to the Knesset gave them an open check to do whatever they wish, misrepresent democracy.”

“What does the minister’s program of change aim to achieve?” she asks. “In practice, it aims to deny the judges the legal tools they use to protect individual rights and the rule of law.”

Levin’s program talks of “an override clause that will deny the court the possibility to strike down laws that disproportionately harm basic constitutional rights,” she charges, “such as the right to life, to property, to freedom of movement and to privacy, as well as the fundamental right to dignity — and as a consequence the right to equality and the right to freedom of expression.”

She denounces Levin’s plan to deny judges’ the right to use “reasonableness” as a measure of legality, and says: “If there is no place for a judge to evaluate the reasonableness of a decision,” including by the government or Knesset, “the next stage, to follow the same logic, might be [to conclude] that a judge has no professional advantage in determining what is ‘reasonable doubt’ in order to acquit a criminal defendant.”

Among other specific points of criticism, Hayut singles out the changes to the Judicial Selection Committee which will give the government total control over judicial appointments.

“The unfounded claims raised regarding the current system for selecting judges are intended to obscure the true motives of those proposing these changes — and that is the desire to completely politicize judicial appointments in Israel, by creating a Judicial Selection Committee in which politicians will have an automatic majority.”

“Judicial independence is the living breath of the [Supreme] Court, and without it judges in Israel could not fulfill their task as public servants,” says Hayut.

“The program of the new justice minister… will deal a fatal blow to the independence of judges. The significance of this plan is therefore to change the democratic identity of the country beyond recognition.”

She concludes: “Mr. Minister, this is not the way.”

Most Popular