Israel’s judicial debate

Chief Justice Esther Hayut stressed the importance of an independent judiciary at a Nuremberg conference.

By AMIEL UNGAR
Supreme Court President Esther Hayut (photo credit: MARC ISRAEL SELLEM)
Supreme Court President Esther Hayut
(photo credit: MARC ISRAEL SELLEM)
Chief Justice Esther Hayut, in a May 13 address to a conference of jurists in Nuremberg, stressed the importance of an independent judiciary: “The independence of the judges is one of the most important guarantees for maintaining an address for the protection of individual rights.” It was therefore logical for a regime like Nazi Germany to usurp judicial authority via the Enabling Act of 1933, and thus legally snuff out individual rights.
In Israel the situation is different, noted Hayut, as protection of the individual is anchored in the Basic Law: Human Dignity and Liberty coupled with the Supreme Court’s power of judicial review.
Hayut may not have intended her remarks to be construed as commentary on the current Israeli political situation, but construed they were. On both sides of the political spectrum, Hayut’s remarks were interpreted as the judiciary’s response to the coalition formation talks that also involve commitment to a sweeping legislative program designed to claw back the powers accumulated by the court since former Chief Justice Aharon Barak’s “constitutional revolution.” Judicial review, for example, may now be overridden by a Knesset vote.
The Times of Israel headlined Hayut’s remarks: “Supreme Court president invokes Nazi era in implicit swipe at Netanyahu.” Yair Netanyahu, the prime minister’s Twitter warrior son, was quick to avenge that swipe. He tweeted: “I am confused or did the Chief Justice think of the Prime Minister of Israel that he is Hitler at the end of the [19] 20s.” He chirped again: “Fact check: In Germany before the Nazis came to power the court had the power of judicial review.”
The penchant for invoking Nazi Germany at the drop of a hat to score political points cheapens the memory of the Holocaust. Unfortunately, some voices on the Israeli left are apparently envious of their American counterparts who label the Trump administration as the second coming of Nazism, and want to show their resistance bona fides with respect to Netanyahu. To paraphrase Talleyrand, not only are the comparisons wrong but they are stupid. Weimar provides no corroboration of the need for judicial supremacy, and it has been cogently argued that Weimar proves precisely the reverse.
Karl Dietrich Bracher had this to say about the judiciary in his Fall of the Weimar Republic: “Many judges whose political and social attitudes were stamped with the values and conservative ideology of imperial time… handed down many judgments which openly expressed their aversion to the [Weimar] Republic and its loyal supporters. In this way the judiciary bears a large share of responsibility for the collapse of the Republic” (cited in Eberhard Kolb’s The Weimar Republic).
The Weimar judges justified this accusation by sentencing right-wing activists who sought to topple the republic, including Hitler himself, to extremely light sentences.
After German foreign minister Walter Rathenau was assassinated in 1921, the Reichstag passed the Law for the Protection of the Republic that imposed severe penalties for conspiracy to murder and criminalizing extremist organizations. The law remained a dead letter because the courts invoked it to pass Draconian sentences on malefactors from the Left, while allowing those acting out of patriotic sentiments to get off with a slap on the wrist.
This story is eerily reminiscent of the Israeli Supreme Court’s selective enforcement of the Election Law passed by the Knesset that is designed to bar parties that refuse to recognize Israel as a Jewish and democratic state from competing in the Knesset election. The court has invoked it in one direction against the Right, while allowing Arab parties who dispute the Jewish character of Israel to run in elections, including the most recent one.
On the issue of judicial review in Weimar, Yair Netanyahu happens to be correct: it was a power that the courts appropriated for themselves, as judicial review was not mentioned in the Weimar Constitution. Once equipped with this power, the courts invoked it to strike down legislation, including important financial legislation, further crippling the Weimar Republic.
Yes, the postwar German Federal Republic, which sought to provide safeguards against a repetition of Weimar, did provide for judicial review in its Basic Law. But tellingly, it did so via separate constitutional courts appointed by the federal and state legislatures that, as a result, have been far less invasive. Aharon Barak haughtily dismissed the idea of an Israeli constitutional court and recommended snuffing out the idea.
Perhaps the most disturbing parallel between the enemies of Weimar and the defenders of judicial supremacy in Israel is the attempt to discredit the legislative branch. The judges railed against the “mishmash laws” legislated by coalition governments “where several parties exercise rule… the result is compromise law.” (Richard Evans in The Coming of the Third Reich). In Israel we are told that it is best to confide in professional and “neutral” judges than in the elected members of Knesset who, as in Weimar, were chosen by the deplorables.
Based on these parallels, would I charge those favoring continued judicial imperialism of seeking to impose upon us a totalitarian dictatorship of the worst sort? Of course not! I simply would like the current court’s defenders to acknowledge that two legitimate sides to the argument exist, and that supporters of judicial restraint should not be marginalized by invoking dubious and double-edged historical parallels.


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