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Rothman: High Court ‘does not respect the judgment of the public’

My aim is to convince the judges that the Knesset should make the laws, MK Simcha Rothman said.

MK Simcha Rothman during the hearing at the Supreme Court in Jerusalem on the "reasonableness law," Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
MK Simcha Rothman during the hearing at the Supreme Court in Jerusalem on the "reasonableness law," Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.

“This is in effect an event where we take 15 judges, and lawyers, and conduct a debate on whether the State of Israel should be a democratic country,” member of Knesset Simcha Rothman told JNS regarding Tuesday’s High Court of Justice hearing on petitions asking it to strike down the “reasonableness law.”

“My aim is to try to convince the judges that this discussion should not take place. Justice [Uzi] Vogelman’s question: ‘Should this hearing go to Strasbourg [the European Court of Human Rights]?’ is the heart of the matter. The discussion is supposed to be held in the Knesset, not in court,” Rothman said.

Rothman heads the Knesset’s Constitution, Law and Justice Committee and is a chief architect of the Netanyahu government’s judicial reform plan

A tense exchange took place between the High Court and Rothman during Tuesday’s hearing as the latter told the court it had no right to intervene in the law, and that the hearing itself reflected the court’s failures to respect the public will.

The court is reviewing petitions asking it to strike down the “reasonableness law,” which the Knesset passed as an amendment to Basic Law: The Judiciary on July 24. It bars justices from using “reasonableness” as a justification for reversing decisions made by the cabinet, ministers and “other elected officials as set by law.”

Rothman told the court it is caught in a conflict of interest.

“The very thought that it is possible to hold a legal hearing, clean and sterile, when the fundamental issue up for discussion is whether the court is acting properly today, or acted properly in the past, indicates a blurring of values,” he said.

“Can you be the ones to judge this question, without fear, without bias, without being biased given you are dealing with your honor, your position and your powers?” he asked.

Supreme Court President Esther Hayut responded that the justices are not concerned with their honor or status but with the public’s honor.

Rothman replied: “If the court had respected the judgment of the other branches [of government] and above all the judgment of the public that elected them, and used the variety of tools at its disposal to correct the moral and democratic distortion in the phrase ‘Everything is justiciable,’ there would not have been a need to amend Basic Laws.

“In fact, the very existence of this discussion indicates that the court does not respect the judgment of the public,” he told the court.

Ilan Bombach, an attorney also representing the government, told the judges: “If you get involved in this decision, it is like using a nuclear weapon.”

Justice Isaac Amit said, “That the majority decides is a basic condition for democracy. But if the majority can do anything, then democracy is at the level of a classroom decoration committee.”

Hayut said, “We do not debate constitutional Basic Laws every Monday and Thursday.”

Rothman further told JNS, “Some of the judges have a distorted understanding on the democratic level, that they are supposed to set the laws, because if it is not their court [that decides the law], then it should be up to the court in Strasbourg. It’s a sad day when the judges think like that.

“The very decision to debate the issue in court saddened me. I thought, and still think, that the court is not the place to conduct such a discussion,” he continued.

“The remarks that were made by some of the judges during the hearing went beyond statements of ‘I do not understand the argument’ and sometimes slipped into political statements,” Rothman said.

“How can it be that a judge expresses an opinion on a bill of a member of the Knesset; all the limits have been crossed. It was a discussion on the part of at least some of the judges—a political discussion, with some statements coming from the [anti-reform] protesters’ [social media] message pages. This is not a good day for the State of Israel. The very discussion is problematic,” the parliamentarian told JNS.

Last week, Rothman submitted a petition to disqualify Hayut from sitting on the “reasonableness law” case, arguing that she was biased given a speech she delivered in January in which she sharply criticized the ruling coalition’s judicial reform program.

“Anyone who reads the speech in its entirety will come to the clear conclusion that the opinion of the honorable Supreme Court president, Esther Hayut, is completely ‘locked in,’” Rothman said.

Rothman, who for years has been an outspoken critic of the court’s gradual accretion of power, first came to the public’s attention through his work as legal adviser for the Israeli NGO Meshilut—The Movement for Governability and Democracy, which focused on the need for judicial reform.

He told the court Tuesday, “In a democratic country, the people are the sovereign. Don’t try to take from the nation of Israel democracy, and their trust in democracy. … Public trust in the court has been waning because of the court’s extensive involvement in social, economic and political matters.

“Democracy is the best, or least bad, method that mankind has found to solve the problems of joint decision-making by a large number of people,” Rothman said.

He cautioned the court against being “tempted to become senior partners in the work of legislation, to receive applause from part of the public, while the other part rejects your rulings. If you do this, the exit from the constitutional crisis that Israel has found itself in for many years will be prolonged and complicated.”

Rothman quoted former Supreme Court President Moshe Landau (1912-2011), suggesting that the court has become “an oligarchic regime of a [small] group of people.”

Basic Laws are thought of as quasi-constitutional, meaning they have greater weight than regular laws and the court treats them as a constitution giving it the power to strike down Knesset legislation.

Although some critics of the court question whether Basic Laws truly constitute a constitution, the government accepted in its arguments the position that Basic Laws hold a special status, and due to that status, the court has no right to interfere with them.

“The government of Israel contends that this esteemed court has not the authority to place itself above the sovereign of the state and assume for itself the power of judicial review over Basic Laws which form the pinnacle of the normative pyramid in the Israeli judicial system,” it stated in its written response to the court.

Attorney Aner Helman, director of the Supreme Court Department in the State Attorney’s Office, one of the petitioners against the law, argued that Israel’s Declaration of Independence is the ultimate source for guaranteeing Israeli democracy.

Justice David Mintz took issue with this position.

“By referring to the Declaration of Independence you are creating something out of nothing; there is no implied authority [from the Declaration of Independence],” Mintz said.

Earlier, the judges asked Bombach whether Israel’s 1948 Declaration of Independence is the source of the Knesset’s authority.

“Thirty-seven people who signed the Declaration of Independence created a constitutional document without meaning to? They were not elected,” Bombach answered.

Justice Yechiel Kasher asked Bombach what the Knesset’s authority was to establish Basic Laws. Justice Daphne Barak-Erez said, “The court[‘s authority] depends on the Knesset, but the Knesset doesn’t depend on anything?”

Bombach replied, “The Declaration of Independence is a foundational text. The government values ​​it very much because it reflects our fundamental values. But from that to giving it legal validity is a long way off.”

The court is hearing arguments from eight petitioners against the law, representing an array of government watchdog and civil society organizations. Attorney-General Gali Baharav-Miara has also asked the court to strike down the law.

Justice Minister Yariv Levin issued a statement on Tuesday morning slamming the Supreme Court for taking up the case, arguing that it has no legal grounds on which to do so.

“Presidents and justices of the Supreme Court over the generations all agreed—the people is the sovereign, and its will is represented in Basic Laws legislated by the Knesset,” said Levin.

“The court, whose justices elect themselves behind closed doors and without a protocol, is placing itself above the government, above the Knesset, above the people and above the law,” he continued.

“Until today, despite highly problematic judicial activism, there was at least one agreed basis—the court respected Basic Laws,” Levin said. “This is the basis that preserved democracy in Israel. The responsibility for preserving this joint basis lies with the court.”

Opposition leader Yair Lapid also issued a statement ahead of the hearing, arguing that the issue isn’t a constitutional one because the amendment in question “isn’t a Basic Law and doesn’t even resemble a Basic Law.”

“This is an irresponsible document that someone wrote ‘Basic Law’ on, and they have since demanded it be treated as holy writ,” said Lapid.

The Israeli Supreme Court has never struck down a Basic Law, a move that would be akin to the American Supreme Court striking down an amendment to the United States Constitution.

The court is expected to take weeks or even months to reach a decision on the matter. Hayut reaches the mandatory retirement age for judges of 70 on Oct. 16 but she can issue opinions for three months following her retirement.

Amichai Stein is the diplomatic correspondent for Kan 11, IPBC.

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