Israel’s High Court prepares for battle

Chief Justice Esther Hayut has retained the services of a communications adviser to help in her clashes with politicians and to mobilize public opinion. This is a first in the history of Israel’s Supreme Court.

Since taking office as chief justice in October 2017, Hayut has had to counter attacks from right-wing politicians seeking to curtail the powers of the country’s top court, which, they argue, erodes the authority of the Knesset. This friction between the judicial and legislative branches of government is hardly new. However, Hayut and the court she heads have found themselves under an onslaught spearheaded by a combative and popular politician, Justice Minister Ayelet Shaked, in a bid to institute judicial reforms.

This is no longer just a case of radical right Knesset members, such as Bezalel Smotrich of HaBayit HaYehudi, regularly harassing the court. Shaked and the chair of her party, Naftali Bennett, are pushing forward a meticulously planned reform that enjoys public backing, even from former Justice Minister Haim Ramon (Labor).

On May 6, the Ministerial Committee for Legislation approved the Override Clause, the flagship of the Shaked-Bennett plan. The bill enables the Knesset to re-enact legislation struck down by the Supreme Court. The next day, Hayut took advantage of a swearing-in ceremony for new judges to deliver a speech castigating proponents of the proposed bill and warning against its consequences. In her widely quoted speech in the presence of Shaked, President Reuven Rivlin and leading jurists, Hayut warned against the loss of the judiciary’s independence. “These are not happy days for Israel’s court system,” she said at the outset of her remarks. “The judicial branch is under a brutal and unprecedented attack that poses a realistic threat to its power and independence.”

Shaked, who took the podium after Hayut, did not appear perturbed and seemed glad of the opportunity to fight back. “Every week a voice is heard proclaiming that Israeli democracy is marching toward its end,” she answered Hayut. “I regret to disappoint the eulogists, but go outside and take a look — Israeli democracy is alive and breathing and kicking and stronger than any of its critics and eulogizers.”

Shaked and Bennett are leading a political campaign that reflects their convictions as well as their desire to appeal to their conservative base. But so far, their actions generated a broad political debate beyond the political right and left division. Hayut is troubled, rightly so, sensing a loss of control and erosion of her standing. The bottom line is that her warnings have not changed a thing. The government has suspended further action on the Override Clause, for now, not because of Hayut’s campaign but due to the political machinations of Finance Minister Moshe Kahlon, the head of the center-right Kulanu Party, who has pledged to protect the Supreme Court.

Standing as she does at the top of the pyramid, all eyes are now on Hayut, but appointing a communications adviser does not seem the appropriate solution to the multidimensional and substantive issues plaguing the court system. Hayut seems to blame the public criticism of the court on the delegitimization campaign championed by the political right. But in reality, things are far more complex. Most probably, the criticism of the public against the court also stems from concerns on the way the judicial system operates.

One case in point is the recent scandal involving Tel Aviv Magistrates Court Judge Ronit Poznanski-Katz, caught in an inappropriate text message exchange with a representative of the Israel Securities Authority, a situation that damaged public opinion of the court system far more than Shaked’s attacks. Or the troubling report by investigative TV journalist Omri Assenheim who exposed backroom dealings over the appointments of Supreme Court justices, depicting supposedly unblemished and impartial jurists scrounging for votes like the last of the political wheeler-dealers. Not to mention the backlog in the courts, the lengthy legal procedures and citizens’ encounters with an antiquated system that often seems detached from reality.

Rather than facing the truth and trying to reach out to the public using the vast resources of the legal system, Hayut could find herself being dragged into the political arena. A development of that sort might damage her personal reputation as chief justice and the statehood of her position.

Hayut picked Lt. Col. (Res.) Hai Lugasi, formerly the spokesman of the Israeli Air Force who served very briefly as Bennett’s media adviser. Lugasi was chosen without a tender, as is customary with positions of trust. Without detracting from his experience as a spokesman, it is hard to ignore the fact that Hayut’s associates underscored Lugasi’s background with Bennett, meaning that he worked for the Supreme Court’s archenemy and he hails from the political right.

Associates of Hayut rejected the claim that was brought up in social networks — that she picked Lugasi as means to appeal to the right-wing political base. Lugasi, according to the court’s announcement, will be tasked with making the legal discourse accessible to the public and actively explaining rulings on social media and elsewhere to provide handy, simple readouts of the complex legal process.

A judicial source cited in Ynet news claims that hiring a media adviser was necessary because currently, “By the time the judiciary reacts, the politicians have already hogged the stage and determined the narrative. … Judicial rulings taken out of context skew the words and intentions of the judges.” However, appointing a media adviser appears to reflect the search for an easy way out of what is a deep crisis. Hayut and her fellow justices can and should seek to win public trust with their rulings.