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Supreme Court chief slams Knesset speaker’s ‘populist’ criticism of judiciary

Esther Hayut defends recent politically sensitive rulings, laments country has lost ability for dialogue, after Yariv Levin vows to change ‘undemocratic’ justice system

Chief Justice Esther Hayut, at the Supreme Court on May 11, 2020. (Yonatan Sindel/Flash90)
Chief Justice Esther Hayut, at the Supreme Court on May 11, 2020. (Yonatan Sindel/Flash90)

Supreme Court Chief Justice Esther Hayut took Knesset Speaker Yariv Levin to task on Thursday, accusing him of being populist and lacking in decorum, after he declared that the justice system was trying to impose its views on the public in an undemocratic manner.

“Criticism is legitimate, of course, but when it is coming from a senior leadership source, you can certainly expect it to be sensible, fair and not populist,” Hayut told the Ninth Law Conference of the Israel Bar Association, after Levine earlier addressed the gathering.

“The comments heard this morning at the conference from the Knesset speaker do not meet that expectation — not from the point of view of content and not from the point of view of style,” Hayut said.

Earlier, MK Levine, of the Likud Party, told the conference that the judiciary is not behaving in a democratic manner, referring to a recent ruling to demolish homes in an illegally-built Jewish settlement, and in contrast, the court’s blocking of the demolition of a suspected terrorist’s home to avoid harm to his family.

“There is an attempt here to take a certain worldview and impose it on the general public in an undemocratic way,” he said. “There is a huge public demand for change in the legal system, and I admit that to this day we have not been able to translate the public demand for change [to action] at the Knesset.”

Hayut defended the court decisions that angered the political right.

“It is important to make a clear distinction between striving to strengthen and maintain public trust in the judiciary and striving for public sympathy in an attempt to please,” she said.

“Hard decisions are often unpopular, and protecting the rights of individuals in society… may provoke opposition,” Hayut said. “But a court operating out of a desire to please and gain public popularity cannot perform its job faithfully.”

Then-tourism minister Yariv Levin at the Kfar Maccabia Hotel in Ramat Gan, on October 27, 2019. (Tomer Neuberg/Flash90)

Hayut also lamented the state of public discourse, saying: “It seems that in the past year, and perhaps even prior to that, we as a society have lost the ability to have a real dialogue.

“The willingness to hear out and accept positions different to our own has been replaced by bunkering down, shifting responsibility… calls for violence, and contempt for others and those who are different.”

The sparring between Hayut and Levin came against the background of resurgent talk in Likud of pushing a long-stalled bill that would give the Knesset the power to override Supreme Court decisions, as well as efforts by Likud to bring changes to the makeup and selection powers of the nation’s Judicial Appointments Committee.

The so-called override clause threatens to set off another crisis in the already-volatile unity government coalition, which last month was brought back from the brink of collapse and fresh elections over a dispute on the national budget.

Justice Minister Avi Nissenkorn speaks during a ceremony at the Justice Ministry on May 18, 2020. (Shlomi Amsalem/GPO)

Justice Minister Avi Nissenkorn, of the coalition Blue and White party, also addressed Thursday’s conference and later tweeted he’d told the gathering he would not support the override legislation.

“Attempts to advance the ‘override’ law over the Supreme Court do not seek to strengthen the infrastructure of checks and balances, but rather to weaken the rule of law,” Nissenkorn tweeted. “The ‘override’ of the court is the ‘override’ of human rights. As the justice minister, I will not lend a hand to the override clause.

As for judicial appointments, Nissenkorn vowed that “there will be no politicization of appointments. In the Judicial Appointments Committee, the judges will be selected according to their experience, skills and professionalism. I will not allow any [outside] considerations to penetrate this area.”

Commenting on the conference, Likud MK Shlomo Karhi called for a total shake up of the judicial system.

“Law conference? The detached conference of the legal oligarchy in Israel,” he tweeted. “Our goal needs to be clear: to demolish the existing legal junta and to set it up anew, cleaner, more transparent, and subject to the law and the will of the people.”

A version of the override bill was overwhelmingly voted down by the Knesset last month, after Likud lawmakers skipped the vote due to opposition from other parties in the coalition.

Blue and White had threatened to dismantle the coalition if Likud reneged on the coalition agreement to vote for the measure.

Likud MK Shlomo Karhi at a Knesset committee meeting on January 13, 2020. (Hadas Parush/Flash90)

The idea of an override clause has been met with fierce opposition from centrist and left-wing MKs, activists, intellectuals and others, who say it would remove a critical check and damage the country’s democratic character, as well as leave minorities and core rights unprotected.

Supporters say the measure is needed to counterbalance judicial activism by judges, who are not elected and whom they claim have too much power.

On Friday, coalition whip Miki Zohar, a Likud lawmaker, urged the Knesset to pass the override bill.

“The legislating of the override clause needs to be a condition for the continued existence of the government,” Zohar wrote on Twitter.

His comments came just days after Likud and Blue and White reached an agreement to delay the deadline to pass a budget by 120 days, preventing new elections for the time being.

Likud MK Miki Zohar during a meeting at the Knesset, January 13, 2020. (Hadas Parush/Flash90)

Though the crisis was ostensibly about the state budget, the true bones of contention appeared to be the issue of senior law enforcement appointments and the balance of power in the dysfunctional unity coalition.

The so-called override bill would give the Knesset the ability to reverse Supreme Court decisions in cases where the bench strikes down new laws. Such a measure has long been a goal of right-wing and ultra-Orthodox politicians, who have seen the court strike down measures regarding West Bank land appropriation, migrant detentions and ultra-Orthodox military enlistment deferrals. Right-wing lawmakers have also touted the controversial proposal as a tool to shield Prime Minister Benjamin Netanyahu, who leads Likud, from detrimental court decisions due to the corruption charges for which he is on trial.

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