Chief justice to PM: Bill for 61 MKs to overturn rulings ‘a danger to democracy’

Lengthy meeting between Esther Hayut and Netanyahu, as government weighs reining in Supreme Court, ends without agreement

Raoul Wootliff is a former Times of Israel political correspondent and Daily Briefing podcast producer.

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)
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)

Facing pressure from his hard-line coalition partners to pass legislation to drastically limit the Supreme Court, Prime Minister Benjamin Netanyahu ended a meeting Sunday with Court President Esther Hayut without reaching a compromise agreement on the initiative.

Coalition sources told The Times of Israel that despite the expectation that the prime minister would accept a compromise proposal presented by Hayut, no agreement was reached in the meeting, which was also attended by Justice Minister Ayelet Shaked of the Jewish Home party.

A government official told The Times of Israel that the meeting lasted about two hours and it was “a serious and in-depth conversation in which views were exchanged.” The official declined, however, to comment on whether any specific proposal received Hayut’s blessing.

During the meeting, Hayut reportedly said that Jewish Home’s plan to give 61 MKs the ability to overturn a court ruling would constitute a “danger to democracy.”

Supreme Court Chief Justice Esther Hayut at a hearing at the Supreme Court in Jerusalem, on January 14, 2018. (Yonatan Sindel/Flash90)

The legislation proposed by Jewish Home would allow 61 out of the Knesset’s 120 members to re-approve laws struck down by the Supreme Court — when it sits as the High Court of Justice, Israel’s supreme constitutional tribunal — effectively giving any government the ability to quash the ruling.

The legislation would take the form of a passage added to the Basic Law: Human Dignity and Liberty. In the absence of a constitution, Israel’s basic laws set the parameters of the balance of power between different branches of government.

Hayut had been expected to tell Netanyahu that she strongly objects to court rulings being overturned with such a majority, but would compromise to accept 75 MKs being able to rescind a ruling.

The meeting followed the advice of Attorney General Avichai Mandelblit, who told the prime minister that in order for the legislation to proceed, Netanyahu would first have to meet with the court president. Mandelblit himself said he would consider supporting the legislation only if it demanded a majority of 70 Knesset members to overturn a court ruling.

Education Minister Naftali Bennett speaks during the event at the President’s Residence in Jerusalem, on April 23, 2018. (Hadas Parush/Flash90)

Education Minister Naftali Bennett, who leads Jewish Home, has threatened to hold up coalition legislation if ministers do not approve the so-called “override bill” this week.

Bennett’s threat came last Tuesday, after coalition partners put off by a week a vote on the bill by the powerful Ministerial Committee for Legislation. The rescheduling of the vote was prompted by Hayut, who had made the postponement a condition for meeting with Netanyahu.

Bennett, along with Shaked, who chairs the ministerial committee, has been the main proponent of the bill, which critics say would disrupt the balance between the legislative and judicial branches.

Coalition partners Likud and Kulanu are reportedly prepared to require 65 MKs, while Bennett and Shaked insist that a majority of 61 MKs should be enough.

“Our demand to legislate the version that has 61 MKs is no surprise,” Bennett tweeted last week. “Likud is signed on an explicit coalition agreement with us. Agreements must be honored. I expect Likud’s full support…We’ll bring back the correct balance between the [legislative and judicial] branches.”

The Jewish Home party has long campaigned for clipping the wings of what it regards as an overly liberal Supreme Court, and Shaked has succeeded in having several conservative candidates appointed to the top bench.

Public Security Minister Gilad Erdan, the no. 2 lawmaker in Likud after Netanyahu, on Sunday rejected the call for a higher vote requirement.

If the threshold goes above 65 votes, “it would cancel out the entire purpose of the override clause,” he said at the start of Sunday’s weekly cabinet meeting.

“The Knesset has passed many laws that protect minorities, and it just wants to secure for itself the right to also protect the majority of citizens in the State of Israel,” said Erdan.

“When the Supreme Court favors the rights of infiltrators, it necessarily harms the rights of the residents of south Tel Aviv and other cities. When the court favors one right, it often harms a much larger or much broader right of other citizens. We can’t have a situation where after a decision like this by the High Court — a small group of people — the Knesset will have no way, through some majority that represents most of the citizens of the country, to change the High Court’s decision.”

African asylum seekers are often called “infiltrators” by right-wing politicians who argue they are not fleeing war but are economic migrants, and thus are not eligible for the protections of international and Israeli refugee laws.

Many of the estimated 38,000 migrants have settled in poorer neighborhoods in southern Tel Aviv and other towns, sparking tensions with longtime residents.

The court’s rulings on the issue, which included overturning the government’s policy decisions on three separate occasions, sparked the recent effort by lawmakers to alter the balance between the judicial and executive branches.

Earlier this month, Netanyahu met with former Supreme Court president Aharon Barak in an apparent effort to show he is seeking middle ground on the issue, Hadashot news reported.

Former Supreme Court judge Aharon Barak speaks at a conference at the Interdisciplinary Center in Herzliya on January 2, 2018. (FLASH90)

According to the report, the meeting with Barak, a symbol of the power of the court, was meant to underline Netanyahu’s commitment to the justice system in general and the High Court in particular.

On Saturday, some 3,000 people turned out for a demonstration in Tel Aviv against the legislation. The demonstrators, who congregated outside the Habima national theater, held aloft signs with slogans including “Bibi get your hands off the High Court of Justice.”

Times of Israel staff contributed to this report.

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