A 15-judge High Court of Justice panel will hear on Tuesday morning eight petitions against the amendment to the Basic Law: The Judiciary that restricts the courts’ power to use the extreme lack of reasonability argument to revoke decisions of the executive branch of government.
This morning’s session is a first on several levels. It is the first time in the court’s history that the entire roster of Supreme Court justices is being assembled, likely to cover the final outcome with a patina of gravity. The court must appear solemn and unbiased because of the second thing it is going to do for the first time on Tuesday: debate the undoing of constitutional legislation.
Generations of Supreme Court justices preached to the country that its Basic Laws that cover several aspects of the principles of the state should serve as a constitution in the making. Based on that mantra, generations of justices killed more than 20 Knesset laws, some of them three times, because, the justices argued, they did not comply with the Basic Laws, and, as you already know, the Basic Laws are the constitution.
And then, a few months ago, the court changed its message to mean: Remember that Basic Law being the constitution and therefore untouchable? Well, we changed our minds. From now on, it’s touchable.
Here’s the inherent problem with that assertion (which is why this scene of plundering every legal precedence ever requires all the justices to participate): The Supreme Court operates by evaluating the compatibility of a given law with the Constitution. But how can the court evaluate a constitutional law? To what should it be compared?
The common reasoning leftist jurists have been offering is that the government has been too easy with the Basic Laws thing, seeing as the main difference between a Basic Law and a regular law is the words “Basic Law” on top. True enough, but nowhere in its rulings since 1995, the year Aharon Barak became Supreme Court President and ushered in full force his judicial revolution, did the court suggest such a difference was required. Indeed, the Basic Law that drove dozens of instances of judicial activism, Man’s Dignity and Liberty, was passed by a 32-MK majority, about a quarter of the House.
In the end, call it a pillage, or call it moving the goalposts in the middle of the game, it appears that Supreme Court Justice Esther Hayut is hell-bent on making this revolutionary disruption of 75 years of precedence her legacy. And since she is due to retire on October 17, she has been cutting corners like a bulldozer cutting through an outpost synagogue on a hill in Samaria to make sure this atrocity will be committed under her reign.
To that end, Hayut rejected three calls to recuse herself on the grounds of a speech she gave back in January in which she analyzed, criticized, and resoundingly rejected every single component of Justice Minister Yariv Levin’s proposed judicial reform. For Hayut to sit on a panel debating the reasonability clause would be tantamount to Mahmoud Abbas chairing a conference on the future of Zionism.
To that end, the court will hear an outright attack on the reasonability clause from Attorney General Gali Baharav-Miara, who earlier submitted to the court a 147-page assault on the same legislation. Allowing the AG in her capacity as government counsel to attack the government is outlandish enough, but then the court informed the private counsel the same government had hired, Ilan Bombach, he couldn’t get a postponement to allow him to thoroughly examine the AG’s attack, because, you know, Esther Hayut is retiring next month. On top of that, Bombach was given only one hour to make his case, and the same went for Constitution Law Chairman MK Simcha Rothman, who was among the parties that demanded Hayut’s recusal.
In short, there will certainly be a session of the High Court this Tuesday, but not of Justice.
