At Fraught Moment, Israel’s High Court Upholds Its Own Powers

By | Jan 03, 2024
Cover Story, Israel, Latest

On January 1, a full 15-justice panel of Israel’s Supreme Court decided to strike down a law that limited its own powers and annul, for the first time in the country’s history, one of its quasi-constitutional Basic Laws. The case was one of the most crucial constitutional issues the court has ever faced.

In July, as part of the right-wing coalition’s attempted judicial reforms, the Israeli Knesset had voted to eliminate the Supreme Court’s ability to strike down laws it deemed unreasonable. In its 8-7 decision, the Court upheld that right. (For background on this amendment, see: “A Dark Day for Israeli Democracy,” published in July.) In her opinion, former Chief Justice Esther Hayut wrote that the July law was “extreme and irregular” and said it “departs from the foundational authorities of the Knesset, and therefore it must be struck down.”

The reasonableness clause is a legal standard used by many judicial systems to evaluate government actions, including in Australia, Britain and Canada. It requires government actions to be reasonable, proportionate and limited to relevant issues.

Even more significant than the annulment of the Knesset’s attempt to overturn the reasonableness standard, a striking majority of 12 of the 15 judges affirmed in their opinions that the court does have the authority to review Basic Laws; furthermore, three of the judges who voted to uphold the Knesset’s action wrote that they were concerned about the law and that it should be interpreted only in the most narrow manner in order to preserve the balance of power among the government, the Knesset and the judicial branches.

The decision follows a tumultuous period that began when the then-new Netanyahu government launched its “judicial reform” program, of which the annulment of the reasonableness clause was a key element. Hundreds of thousands of Israelis took to the streets to protest the amendment for 38 consecutive weeks until the Hamas attack on Israel on October 7.

In presenting its plan, the government—especially its most radical members from the Jewish Power, Likud, and Religious Zionism parties—argued that the court should not have the authority to strike down Israel’s Basic Laws, which can be passed by a simple majority in the Knesset. The opponents of the judicial overhaul argued that this view would give the government a free pass to abuse the rights of minorities and to distort basic democratic principles in order to serve the political interests of its members.

Due to a leak published on Israeli TV last week, the publication of the decision did not come as a surprise. The government, for its part, had hoped the decision would be delayed because two retiring justices (Chief Justice Esther Hayut and Anat Baron) would have been ineligible to participate in the decision had it been delivered after the middle of January. According to most legal analysts, without Hayut and Baron, the court would have upheld the law 7-6.

In her opinion, Hayut addressed the court’s choice to publish the opinion during wartime, stating that “even at this difficult time, the court must fulfill its role and decide on the issues brought before it. That’s all the more so when it comes to issues involving the core characteristics of the identity of Israel as a Jewish and democratic state.”

On Monday, following the decision, MK Simcha Rothman (Religious Zionism), head of the Knesset Law and Justice Committee, who has been a vocal proponent of the judicial reform, told a group of journalists during a webinar organized by the Jerusalem Press Club that “The fact that the entire people of Israel have united as one during this time of war…makes it clear that the decision is out of place.  This is not the time for this kind of divisive decision.”

Justice Minister Yariv Levin of Likud agreed. “The Supreme Court judges’ decision to publish their ruling in the middle of a war is the opposite of the spirit of unity that we need in these days so our troops can succeed at the front.”

The amendment to the reasonableness clause was the first step in the judicial reform promoted by Levin and Prime Minister Benjamin Netanyahu. Both have made it clear that they intend to change numerous laws, most of which will make Israel more nationalistic, including denigrating the status of the Basic Law on Human Dignity and Liberty into a regular law, limiting Israeli citizens’ right to petition the High Court of Justice, politicizing the appointment of legal advisers in government ministries by subordinating the process to ministerial judgment and splitting the role of the attorney general so that the cabinet will appoint a prosecutor general who will be responsible for prosecuting cases against ministers and members of the Knesset.

As it stands now, all these can be legislated and amended with a simple Knesset majority, rather than any kind of broader majority that would require at least a modicum of agreement from the opposition. However, with the reinstatement of the reasonableness clause, they can be challenged in the High Court of Justice.

Explains Rothman, “We [Members of Knesset (MKs)] are elected officials and know what the public wants and needs.” Added Levin, in a social media post, “A situation in which it is impossible to legislate even a Basic Law or make any decision in Parliament or in the government without the agreement of Supreme Court judges takes away the voices of millions of citizens and their basic right to be equal partners in decision-making.”

Critics of the government’s program argue that it will turn Israel into a majoritarian democracy, in which there is no search for a consensus on contentious issues or attempts to protect the rights of the minority. Indeed, the critics note, the reasonableness law was passed in July with just the coalition’s 64 votes of the 120 seats in the Knesset; all 56 opposition MK’s boycotted the vote. Furthermore, a survey by Israel’s Kan public television revealed that 43 percent of the public did not support the changes.

Critics also note that within a more majoritarian democracy, it would be much easier for Netanyahu, who is on trial on corruption charges, to put an end to the criminal proceedings and prevent his removal from office during those legal proceedings.

In theory, Netanyahu and Levin could simply bring the law to the Knesset again, in the hope that the court, without Hayut and Baron, would not annul the legislation. However, according to most observers, they are unlikely to do so, both because this would contradict his own calls for unity and because, given the fact that the judges who asserted the rights of review are from different ideological bents, including some recognized as conservatives, it is not clear that it would, indeed, pass another challenge at the Court.

In the past, Netanyahu had repeatedly refused to pledge that he would honor a Supreme Court ruling that would strike down the law, but he is likely to put the conflict on hold, at least for now, in order to avoid being accused of triggering further dissension while the country is at war.

One thought on “At Fraught Moment, Israel’s High Court Upholds Its Own Powers

  1. Peter Buchsbaum says:

    A needed result. The divisiveness comes from the Natanyahu government, not the High Court

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