(JNS) Outgoing Supreme Court president Esther Hayut is playing the short game. She wants to clear her desk, finish the work she set out to achieve when she took over as Supreme Court head in late 2017 and let the chips fall where they may.
Shortly before Hayut assumed office, she set out her judicial vision in an address before the Bar Association. The central challenge facing the court, she declared, was surmounting the rule of law.
Comparing herself and her colleagues to God, she bloviated: “There’s a disadvantage that we flesh and blood judges have in comparison to the Creator of the Universe. Even in the situations where we understand fairly quickly the dilemma that brought the petitioners before us, it often happens that the solution we view as just and proper isn’t possible under the practice and requirements of law. These situations in my view are among the most difficult and complex ones that we as judges are called upon to contend with.
“How do we bridge the gap between the law and what is right? Finding an answer to this question, discovering the secret … ‘spice’ is perhaps one of the greatest tasks that lies before us as judges.”
Now with a mere two months remaining to her tenure, Hayut is finishing the job. She’s found the “secret spice.” All a judge needs to rule the way he or she wants is to place themselves above the Knesset, the laws it passes and the government that is charged with executing them. She began the process two years ago and is completing it now.
Israel is a parliamentary democracy. Legally and constitutionally, this means that the Knesset is the sovereign. The government is the executive arm of the Knesset. The Knesset can oust the government any time a majority of Knesset members lose confidence in it. The Supreme Court interprets the Knesset’s laws.
The source of the Supreme Court’s power is the corpus of Basic Laws passed by the Knesset. Since they are the source of its power, the court has no legal power to amend or abrogate these laws.
This, however, is no obstacle for Israel’s godlike Supreme Court justices, who have that “special spice.”
Two years ago, Hayut began laying the markers for the actions she intended to take before her retirement. In two separate judgments, she and her associates agreed to adjudicate petitions calling for the abrogation of Basic Laws and asserted their right to do so, based on an entirely made-up rationale. The justices proclaimed that they can abrogate Basic Laws if they decide the Knesset “abused its foundational powers” in passing them.
This means that Hayut and her cronies have decided that they can annul Basic Laws if they don’t like what they say. Since the justices have the “special spice,” they know better than the public’s elected representatives what a proper law looks like. Or smells like.
Israel Today Membership
Save 18% Per Month.
Six Months Membership
Save 9% Per Month.