Photo Credit: Yonatan Sindel/Flash90
Supreme Court President Esther Hayut, May 9, 2019.

Supreme Court President Justice Esther Hayut, speaking at the Israeli Bar Association conference in Eilat on Monday, mentioned remarks made by Prime Minister Benjamin Netanyahu during her own 2017 swearing-in ceremony, when he said that “the arguments regarding the demarcation of the three branches of government have accompanied and will continue to accompany our democratic life,” but then added that “one thing that does not change – and must not change – is the need for a strong, independent, honest and impartial court.”

According to Hayut, “the prime minister also said that ‘the essential point is not the fact of the debate, which is inevitable – but how to create an effective dialogue between the branches of government, based on a balanced approach and mutual respect […] Perhaps it is too much to expect the different branches to hold one another’s hands, but it is not at all too much of an expectation to believe in an honorable dialogue.'”


Hayut continued that “the prime minister concluded by saying: ‘I advocate dialogue: open dialogue, regular dialogue, honest dialogue. Instead of creating an abyss, we will build bridges.'”

“Indeed, adherence to these important principles on which the prime minister stood in his speech – the maintenance of an independent court, and the establishment of an open, regular and honest dialogue between the branches of government, characterized by mutual respect – is one of the important guarantees for the existence of a democratic life in the State of Israel,” the Court President agreed.

Then she delivered her inevitable punch: “A year and a half passed since that ceremony at the President’s Residence, and I would like to ask what has changed during this period? Has anything happened since which justifies a departure from these important principles? In my opinion, the answer to this is No.”

Well, not exactly. A landmark election happened since the court president’s swearing-in, and the balance of power in the Israeli public has shifted even further to the right. Netanyahu’s coalition partners are seeing an opportunity to reverse almost 30 years of an activist supreme court, and moving in the direction of a more restrained, even conservative court. In fact, Hayut herself has been more restrained in her guidance of the court and would probably not dream of repeating the damage a former court president caused the political system by annulling an IDF draft law because she wasn’t happy with the number of recruits it produced. If not for that insanely activist justice – Dorit Beinisch – Netanyahu could have put together his new government coalition weeks ago.

“But I raise these questions because, unfortunately, there was a great gap between respectable dialogue and the blunt, insulting and unbridled discourse that characterized the election campaign for the 21st Knesset and which continues to accompany the government coalition negotiations,” Court President Hayut told the assembled Israeli lawyers in heat-wave plagued Eilat.

According to Hayut, “The judiciary believes in neutrality, independence of thought, and political independence. Therefore, I thought that during the election period it would not be appropriate to respond to those serious statements that I mentioned, and I confined myself to silence – even in the days when there were those who went so far as to present the judiciary and the judges as the ‘enemies of the people.'”

At which point or shortly thereafter, attorney Yitzhak Bam heckled: “You’ve earned it honestly.”

Not amused, Hayut said: “I believe that in order to preserve the status of the judiciary as a neutral and non-political authority, it should not, as a rule, be dragged into the political arena…”

Which would be a stupendous joke were it not so infuriating. Over the two decades or so since Hayut was appointed to the high court, that august body has acted as the 121st member of Knesset on so many occasions (the natural gas outline comes to mind). Heck, it acted as a volunteer for B’Tselem in uprooting entire Jewish settlements over slivers of Arab land that had been identified using legal magnifying glasses. Indeed, since 1992, the Supreme Court has completely lost its public prestige, dropping from 70% to 10% in public opinion polls.

Hayut concluded in a self-righteous wail: “But should the judiciary continue to remain silent even when it faces attempts to fundamentally change the relationship between it and the other branches in order to seriously harm its authority?”

Bezalel Smotrich responded with a furious tweet, accusing Hayut of meddling in Knesset legislation even in areas she is not allowed to, namely fundamental Knesset legislation. This will come up frequently in the next Knesset, especially if Smotrich becomes Ayelet Shaked’s successor at the justice ministry.

Speaking of dialogue: this reporter has had it up to here with the left’s high-pitched gevald alerts about the demise of Israel’s democracy due to the changes proposed by rightwing politicians. As if there is something fundamentally illegitimate in the House’s attempt to move the goal posts back to where they had been before Justice Aharon Barak’s 1992 judicial revolution. Israel’s democracy is resilient enough, despite all of its shortfalls. It’s OK to object to the majority in parliament, but damn it, must you be so shrill?


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