Let’s put it this way: had retired Supreme Court President Esther Hayut respected the notion of fair play and let the deliberations of the motion to revoke the basic law amendment dealing with the reasonability clause, the dangerous precedent would have been averted: she and the other retired justice, Anat Baron, who both support killing the law, would have been long gone, and the court would have decided against the motion by a majority of 7 to 6.
The deadline for Hayut to participate in any Supreme Court activity is January 12. She ignored the fact that many judges do not feel that the debate on the issue has been exhausted, and will likely force a vote that would reflect not the opinion of the court today, but rather that of the court last October.
It goes to show you that all the high talk about the lessons of October 7 and the need for unity at a time of a national crisis are of the same interest to Hayut as the democratic principle of the separation between the three branches of government which her court trampled with all the gentility and grace of a herd of raging bull running down the streets of Pamplona.
On Wednesday, News12’s Amit Segal revealed that Hayut was planning to force a vote before January 12 and that the court panel that would include her and Baron would kill a basic law for the first time in the country’s history.
The funny thing is that the doctrine that gave basic laws a status equal to that of the US Constitution was forged by the same judicial cabal, under the leadership of former Supreme Court Chief Justice Aharon Barak.
Heck, even those bulls in Pamplona only run in one direction.
Frankly, going through my notes on the legislation felt like being yanked in time to a vane epoch riddled with searing hate and petty nastiness. I suspect most Israelis shudder and the notion of ever returning to that chapter in the country’s history. But I was put on God’s green earth to report, and so report I shall, and never mind that rising bile.
On July 10, following a day that included hooligans’ attack on the Knesset (they tried to stick themselves to the floor with Krazy Glue), and after three hours of plenum debate that was mostly yelling and heckling, the coalition bill restricting the reasonability doctrine was passed in a first reading. Coalition members clapped their hands in glee (even though some of them cast a yea vote only in deference to the coalition discipline); opposition members banged their desks and yelled, “Busha! Busha!” or “Shame! Shame!” The phrase is an import from American culture, but what isn’t these days?
A few weeks later, the bill became law. It ended a situation whereby judges, supreme and otherwise, were able to decide directly against the letter and the spirit of given laws by suggesting that a government action appeared unreasonable to them. Judges are still free to attack and revoke government action based on the law, provided they explain why said action was against the law. But they can no longer say that although the law is on the side of the government, the judges decide otherwise.
Hayut and the deep state armies she represents were willing and able to bring the country to the brink of a civil war over that one because it represented a trend on the part of government and the legislature to level the playing field of the three branches once again, after 30 years of a gradual takeover of the field by the judiciary.
Here’s a funny note from Segal’s scoop: President Hayut wrote in the draft verdict: “This Basic Law constitutes a considerable deviation from the ‘constitution in the making’ and therefore it must be accepted by broad consensus and not by a narrow coalitional majority.”
Well, for one thing, in a 120-seat parliament with 12 factions, a 64-56 majority is not narrow. Also, the 1992 Basic Law: Human Dignity and Liberty that served as the foundation for Justice Barak’s 30-year judicial coup d’etat was passed with only 32 votes.
But, of course, none of these matters. It’s not clear if the leak came from Former Justice Hayut leaked the draft decision as a weather balloon, or by the coalition to try and torpedo the court’s hurried vote. It doesn’t even matter if the court is strongarmed by the 70-year-old justice into killing a basic law. In the end, this coalition government or the one that will follow will rewrite the reasonability clause because the reality of a Supreme Court tyranny is untenable, no matter if you’re on the right or the left.
What matters, above everything else, is that Former Justice Esther Hayut, like the rest of us, is biodegradable and that naturally curtails the scope of the damage she may inflict.
