President of the Supreme Court Esther Hayut This evening (Thursday) she will deliver a scathing speech at the annual conference of the Association for Public Law where she will oppose the legal plan promoted by the new minister Yariv Levin, which includes significant reforms in the legal system that will allow politicians to have more influence on its character and judges. The ombudsman is also expected to follow her Waves in Harv-Miara To speak. Join the live broadcast:
Esther Hayut’s speech, broadcast courtesy of Walla!
The President began by saying: “A few days ago, the new Minister of Justice presented a lightning plan for far-reaching changes in the justice system. In fact, this is a rampant attack on the justice system, as if it were an enemy that must be attacked and subdued.
“Cynically, the masterminds of the plan call it a plan to “correct” the judicial system. And I say – it is a plan to crush the judicial system. It is designed to deal a fatal blow to the independence and independence of the judiciary and turn it into a silent authority.
“This conclusion emerges both from the way the minister chose to present his plan and from its content and substance. There is no other way to understand the dramatic press conference that the minister chose to hold only a few days after taking office, in which he presented his plan for the first time.
“As I have stated more than once – judicial independence and independence are the lifeblood of the court, and without them Israeli judges will not be able to fulfill their role as public servants and loyalists.
“This year the State of Israel will celebrate 75 years of independence as a Jewish and democratic state. This is an important milestone in the life of the state – but unfortunately, as the plan of changes that was presented is realized, the 75th year will be remembered as the year in which the democratic identity of the state was dealt a fatal blow.
“In recent days we have all heard that the main justification for the plan is the will of the majority and the decision of the majority. Indeed, “rule of the majority” is a basic principle that underpins the democratic regime – but democracy is not only the rule of the majority. Anyone who claims that the majority who elected their representatives to the Knesset, thereby gave them an “open check” to do as they please, bears the name of democracy in vain.”
Ze’ev Jabotinsky, whose new Minister of Justice testifies to himself that he was educated on the knees of his teachings, wrote as early as 1938, about a decade before the establishment of the state, that ‘democracy means freedom. Even a government supported by a majority can deny freedom. And where there is no “Guarantees for individual freedom – there is no democracy there.”
“One of the distinct functions of a court in a democratic country is to provide effective protection for human and citizen rights in the country. An independent and independent court is, therefore, one of the most important guarantees for individual freedom that Jabotinsky spoke of. It is the guarantee that the rule of the majority does not turn into the tyranny of the majority .
“What does the minister’s change plan ask to do? In fact, it does To take from the hands of judges the legal tools they use to protect individual rights and the rule of law. The program talks about Overcoming paragraph Which will deny the court the possibility to cancel laws that disproportionately harm constitutional human rights, including the right to life, property, freedom of movement and privacy, as well as the fundamental right to dignity, and as a derivative of it – the right to equality, the right to freedom of expression, and more.”
“The planned superseding clause allows the Knesset, with the support of the government, to enact laws that would harm these rights without hindrance. Therefore, whoever thinks that the superseding clause “supersedes” the court is wrong. In fact, it is about overcoming the human rights of each and every individual in Israeli society.
“Another and important legal tool that the program seeks to take from the hands of the judges is Reasonablenessby virtue of which the court, in appropriate cases, rejects decisions of the government authorities that fall into an administrative defect – for example, of arbitrariness, ignoring relevant considerations or an incorrect balance between the considerations necessary for the matter.
“Those in favor of canceling the reason for reasonableness claim that these are ethical and professional decisions, and that for the purpose of examining the degree of reasonableness of the Authority’s decision, the judge has no priority over the governmental entity that made the decision. This is a difficult argument in my view. If there is no room for an ethical decision by the judge regarding the reasonableness of the governmental decision, the next step – according to the same logic – it is perhaps because the judge does not have any professional advantage to also determine what “reasonable doubt” is for the purpose of acquitting a criminal defendant.
“Perhaps, according to the same logic, it can be added and argued that the judge has no advantage in deciding whether a doctor or an engineer, for example, was negligent because they did not act as a “reasonable doctor” or “as a reasonable engineer” and caused damage that warrants compensation. In fact, even the decision of whether parties who entered into a contract acted in In good faith and in a customary manner” is a value decision, and perhaps the judge does not have any priority in this matter either? From here the road is short until the deletion of extensive chapters in the various branches of Israeli law, all immersed in value standards that the judge must examine and decide on.
“Another question is to what extent the court knows how to exercise restraint and make careful and responsible use of the legal tools in question, that is, invalidating laws due to disproportionate damage to human rights and annulling decisions of a governmental authority because they are extremely unreasonable. I think that over the years the court has proven that it is indeed Practices restraint and responsibility and does not make unnecessary use of these tools.”
“The supporters of the change plan are trying to paint a different picture as a justification for implementing their plan. But the data tell the truth and teach that these are false claims and that the changes detailed in the plan are not only not required in order to balance the authorities, their implementation is what improved the delicate balance between them, a serious and dangerous violation.
“To illustrate how false these claims are, I will point out that since the enactment of the Basic Law: Human Dignity and Freedom in March 1992 and until today, for over thirty years, the Supreme Court has intervened in 21 laws or sections of the law. Out of the thousands of laws enacted by the Knesset during that time period Data concerning other democratic countries, such as the United States, Canada and Germany, show that the rate of disqualification of laws by the courts there is immeasurably higher than that in Israel.
“Cancelling decisions of administrative authorities on the grounds of reasonableness is also not a vision that has been breached in the rulings of our courts over the years. A substantive and unbiased review of the rulings will show that the court refrains from converting the authority’s discretion into its own.
“but The expectation that the court will stand still even in those exceptional cases where the government violates its obligations towards the individual – is a dangerous expectation. It contradicts the place of the court in the democratic system of balances, and it is contrary to the biblical commandment instructing the judges of Israel “You shall not fear anyone” – and in the language of the Midrash: “You shall not cover your words for fear of anyone”.
“It is important to emphasize: the legal tools that the change plan seeks to abolish will in fact deprive the court of its ability to conduct effective judicial review, relying on which every citizen and resident can present before the court claims and objections against actions carried out by the government authorities.
“It is about denying legal tools that belong to the public, that exist for the public, and that are used by the court for the benefit of the public. With the help of these tools, the court grants relief to anyone who has suffered an injustice that requires correction, and maintains the rule of law and human rights, which are fundamental principles of democracy. In this sense, the theoretical concepts of “repeal of laws” and “reasonableness” translate directly into the practical life of every citizen and resident of the country.
“Whoever tells you “no more disqualification of laws”, actually means: “no more prohibition on detaining soldiers for long days without bringing them before a judge”, as the court ruled in the Tzemach case. “No more protection of the right of car owners to receive income support benefits” , as the court ruled in the Hasan case. “No more exercising the right of same-sex couples to parenthood and a full family life,” as the court ruled in the Ard-Panks case.