Supreme Court said ready to take ‘extreme steps’ to stop curbing of its powers

Israeli TV quotes justices saying they ‘won’t hesitate’ to block Netanyahu’s reported legislative efforts to avoid prosecution, as ‘history will judge us’

‎Supreme Court Chief Justice Esther Hayut (C) and other judges on the court, ahead of a hearing on March 14, 2019. (Hadas Parush/ Flash90)
‎Supreme Court Chief Justice Esther Hayut (C) and other judges on the court, ahead of a hearing on March 14, 2019. (Hadas Parush/ Flash90)

Judges on the Supreme Court have warned they could take “extreme steps” in order to block legislative proposals that could severely curtail the court’s powers and shield Prime Minister Benjamin Netanyahu from prosecution, Israeli television reported Friday.

“It seems as if the prime minister and the candidates for the role of justice minister want to shatter and destroy the legal system,” Channel 13 news quoted unnamed Supreme Court justices saying during private talks.

“The immunity bill alongside the override clause is unbelievable. We won’t hesitate to take harsh and extreme steps because history will judge us,” they were said to add. The reference to the “immunity bill” relates to indications that Netanyahu is considering amending current legislation to make it easier for him to obtain immunity from prosecution in the three corruption cases against him; the reference to the “override clause” relates to his reported plans to neuter the Supreme Court by reversing its right to overturn parliamentary legislation and decisions it regards as unconstitutional.

The passage of such an “override clause” would mark what has been called the greatest constitutional change in Israeli history, with vast potential impact on the checks and balances at the heart of Israeli democracy, denying the courts the capacity to protect Israeli minorities and uphold core human rights. It would also, not incidentally, mean the Court could not reverse Knesset-approved immunity for Netanyahu.

The TV report on Friday did not specify whether all of the judges on the court share the view that “extreme steps” are necessary, nor which of them took part in the conversations. It also did not specify what the “extreme steps” might be.

A spokesperson for the courts told the network that if the comments were made, they represented the view only of the individual or individuals who made them.

“The agreed-upon stance of the judicial justice system will be given at the appropriate time and in the appropriate formula,” the spokesperson said.

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)

Netanyahu’s Likud party denied the prime minister was seeking “to destroy” the court.

“It is hard to believe that anyone takes seriously the idea the prime minister wants to destroy the Supreme Court,” the party was quoted saying in response.

“There is a huge difference between reasonable reforms to return the balance [between the legislative and judicial branches] and empty claims about an intention to destroy one of the three foundational authorities of democracy,” it added.

The reported comments came a day after former chief justice of the Supreme Court said if he was still in his position he would have resigned if the Knesset passed the kind of far-reaching constitutional reform that Netanyahu and his intended new coalition partners are reportedly planning.

“I would consider resigning” if the “override clause” curbing the court’s authority became law, said Prof. Aharon Barak, in an interview with Channel 13. “Why not? What would I be doing there? What would I be able to do there?”

Barak, 82, who headed the Supreme Court from 1995 to 2006, and who is most closely identified with the court’s ostensibly activist nature, was reacting to widespread reports that the incoming Netanyahu coalition will indeed legislate to curb the powers of the court — giving Knesset members the authority to re-legislate laws that the court has struck down, and prevent the court from intervening in administrative decisions.

Former Supreme Court chief justice Aharon Barak speaks at a conference at the Interdisciplinary Center in Herzliya on January 2, 2018. (Flash90)

Provisions for a particularly wide-ranging version of the so-called override legislation will be included in the coalition agreements, Channel 12 news said Wednesday night.

Such a law is of immense potential personal significance for Netanyahu, who is facing prosecution in three corruption cases, and is widely expected to ask his fellow Knesset members to vote in favor of giving immunity from prosecution, as is possible under existing Israeli law. In the current balance between the legislature and the judiciary, however, the Supreme Court would likely overturn such a Knesset decision. The legislation mooted by the incoming government would deny the court the right to do so, meaning that Netanyahu could not be prosecuted.

The court’s obligation to maintain oversight over the legislative and executive branches is enshrined in Israel’s quasi-constitutional Basic Laws, approved by the Knesset, as a central feature of the checks and balances of Israeli democracy.

According to Wednesday’s Channel 12 report on the planned reform, among the legislation’s core elements is that the Knesset will be able to re-legislate any law that the Supreme Court has struck down as unconstitutional, and do so with a majority of 61 votes in the 120-member Knesset. The court has struck down some 18 laws in the past two decades, which defenders of the court say is an extremely low number by western standards.

The bill will also remove the court’s authority to overturn parliament’s administrative decisions, the TV report said, including decisions to grant Netanyahu or any other Knesset immunity from prosecution. Netanyahu is to be indicted for fraud and breach of trust in all three cases, and bribery in one of them, pending a hearing scheduled for October. If the planned legislation becomes law before then, Netanyahu would be able to avoid being indicted.

The prime minister denies any wrongdoing, and says his legal difficulties are the result of a witch hunt by the opposition, the media, the police and the state prosecution, headed by a weak attorney general, aimed at ousting him.

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