'One thing doesn't change - the need for an impartial court'

‘What’s changed?’ Supreme Court head asks PM, who once lauded strong judiciary

For second time in as many weeks, Esther Hayut swipes at Netanyahu’s plan to shatter judicial oversight, quoting 2017 remarks in which he emphasized importance of independent court

Jacob Magid is The Times of Israel's US correspondent based in New York

Chief Supreme Court Justice Esther Hayut adresses a legal conference in Eilat on May 27, 2019. (Screen capture/Channel 12)
Chief Supreme Court Justice Esther Hayut adresses a legal conference in Eilat on May 27, 2019. (Screen capture/Channel 12)

Chief Supreme Court Justice Esther Hayut blasted Prime Minister Benjamin Netanyahu on Monday over looming legislative efforts to stifle the state’s judicial system and grant the premier immunity from prosecution.

Speaking at an Israel Bar Association conference in Eilat, Hayut opened her remarks by quoting a line from a speech that Netanyahu gave a year and a half ago at her October 2017 swearing-in ceremony.

“One thing that does not change — and should not change — is the need for a strong, independent, honest and impartial court. That has not changed, and it will not change either,” Netanyahu said then.

In the same speech, Hayut said, the prime minister called for an “open and honorable dialogue in addition to building bridges between the [legislative and judicial] authorities out of a balanced approach and mutual respect.”

Having cited his words, the chief justice then addressed Netanyahu directly. “Since that ceremony at the President’s Residence, a year and a half has passed, and I have to ask: What has changed during this period? Has anything happened since that justifies a deviation from these important principles? In my opinion, the answer to this question is no.”

Prime Minister Benjamin Netanyahu with Supreme Court Chief Judge Esther Hayut (L) at a memorial service marking 22 years since the assassination of Yitzhak Rabin, held at Mount Herzl cemetery in Jerusalem. November 1, 2017. (Marc Israel Sellem/POOL)

Adhering to the principles outlined by Netanyahu less than two years ago “is one of the most important guarantees for the existence of democratic life in the State of Israel,” she declared.

Hayut’s remarks came in response to reported plans by Likud lawmakers and Netanyahu to pass so-called “override” legislation removing from the court its power to strike down Knesset laws and government decisions it deems unconstitutional.

The passage of such an “override clause” would wreak 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 prime minister is facing charges, pending a hearing, of fraud and breach of trust in three cases, and bribery in one of them. He has denied any wrongdoing and claims the corruption accusations are a political witch hunt aimed at forcing him from office.

In an effort to avoid being seen as interfering with the political process, Hayut said, she had refrained from responding to lawmakers who during the election campaign labeled the judiciary an “enemy of the people.” The Supreme Court chief also said that she would not comment on general attempts to reform the legal system. However, she said, when the conversation became centered around “fundamentally changing the relationship between the judiciary and the other authorities, [in a way that] seriously harms [the former’s] authority” she felt obligated to speak out.

Former Supreme Court president Aharon Barak (Miriam Alster/FLASH90

Hayut rejected outright the criticism that since former chief justice Aharon Barak’s 1995-2006 tenure, the court has taken on an “activist” nature, saying that the judicial review that is now under fire existed long before the Barak era.

This was the second time this month that Hayut went on the offensive against attacks on the legal body she heads.

Two weeks ago, in a speech in Nuremberg, Germany, she invoked the Nazi takeover of Germany in the 1930s. Referring to the 1935 Nuremberg Laws, Hayut 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.”

“History is not repeating itself,” she said 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.”

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