The battle over the future of the Israeli judiciary crossed a rhetorical threshold on Tuesday as High Court President Esther Hayut implied in a speech that Prime Minister Binyamin Netanyahu’s reform program was reminiscent of Nazi Germany.
While Hayut did not mention Netanyahu’s name, she drew a parallel between the Nazi rise to power, which entailed neutralizing the judiciary, and current challenges posed to Israel’s judiciary. Judicial review of legislation is a key guarantor against tyrannical encroachment; but that Germany’s once-vigorous justice system could not “withstand every attack.”
So too in Israel. The country’s quasi-constitutional 1992 Basic Law is under attack, Hayut told a gathering of the German Lawyers Association in Nuremberg:
“In order for the provisions of this Basic Law to be fulfilled in practice and receive adequate protection, judicial review is needed. And for 25 years, the High Court of Israel has indeed been conducting judicial review of the validity of laws, out of the view that human dignity is the primary right, from which most human rights are derived,” Hayut said.
“History is not repeating itself,” Hayut she said, “but it gives us the opportunity to learn from it and enables us to see patterns and judge for ourselves.”
A report in Haaretz on Monday claiming that Netanyahu is preparing just such an onslought on judicial review has inflamed the debate over the proper role of the High Court in Israel.
It said that legislation would be drafted to prevent the court from overturning both Knesset legislation and government decisions on constitutional grounds, and that would grant the prime minister and other officials immunity from prosecution.
Netanyahu subsequently denied the report, characterizing it as “misleading” and “distorted.”
Reports of the prime minister’s intention to appoint either Yariv Levin (Likud) or Betzalel Smotrich (URWP) as next justice minister, both of whom are strong advocates of rolling back the Court’s dominance in political matters, have provoked a pre-emptive campaign on the part of the judges and their left-wing allies.