High Court Ruling Overturning Judicial Reform Law Leaves Israel in ‘Anarchy,’ Says Expert

The court's historic vote against the controversial law limiting judicial review power has left a void in the judicial-political balance, says one expert, as both praise and criticism of the decision are subdued amid the Israel-Hamas war

Israel’s High Court on Monday took the historic step of overturning the government’s highly controversial law that would have curtailed the ability of the courts to review and annul government decisions and appointments that fail to meet the judicial standard of “reasonableness.”

The judgment was reported in all media outlets, but coming amid the war against Hamas in the Gaza Strip, it failed to garner the massive headlines and furious public debates that it would have prompted only a few months ago.

Before the war, the country was torn apart by deep divisions over the government’s planned judicial reforms, which largely aimed to reduce the powers of the judiciary.

The controversial law, the first step in the judicial overhaul package, was an amendment to the quasi-constitutional Basic Laws, which have been in place since the modern state of Israel was founded. Proponents of the law claim that the unelected judges on the courts have too much power to overturn decisions of the elected government. Opponents of the law say the courts act as a necessary check on the government in a country that does not have an upper house of parliament or a formal constitution. The government’s promotion of the law sparked widespread protests around the country for months. With the governing coalition holding a clear majority in the Knesset, Israel’s parliament, the law passed in July 2023.

On Monday, the court overturned the law by a vote of 8 to 7, strictly along ideological affiliations. It was the first time that any court has struck down a Basic Law or an amendment to a Basic Law. It was noteworthy that 13 of the 15 judges, including some sworn in under right-wing conservative governments led by Israeli Prime Minister Benjamin Netanyahu, agreed that the courts do have the authority to review Basic Laws or amendments to Basic Laws.

“The verdict has essentially decided the fate of the whole reform,” attorney Ze’ev Lev, legal counsel for the Movement for Governability and Democracy, told The Media Line. “The reform was an attempt to regularize the regime through legislation. This verdict means that any reform will not be through legislation, because the High Court will not allow for this.”

We are now in a type of anarchy. The court ruled that the Basic Law won, meaning it can use the reasonableness standard, but the Knesset and the government claim that the court does not have the authority to strike down a Basic Law, making the verdict void.

However, Lev said the verdict had left a vacuum in the judicial-political balance.

“We are now in a type of anarchy,” he said. “The court ruled that the Basic Law won, meaning it can use the reasonableness standard, but the Knesset and the government claim that the court does not have the authority to strike down a Basic Law, making the verdict void. This essentially means there is no democratic process in Israel regarding the authority of the High Court, making it omnipotent.”

Opponents of the judicial reforms expressed satisfaction with the verdict.

Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, told The Media Line that the ruling means that the courts have the reasonableness standard at their disposal when deliberating cases.

“For the first time ever, the court ruled that an amendment to a Basic Law or a new Basic Law is nullified. This is the first time that there is a judicial review on the authority to alter Basic Laws, limiting the Knesset’s legislative authority,” Fuchs said.

Israel lacks a set of checks and balances, and changes to Basic Laws can be legislated with a parliamentary majority in a single day. The only check in place is the judicial overview of the courts.

“Unlike American democracy, Israel lacks a set of checks and balances, and changes to Basic Laws can be legislated with a parliamentary majority in a single day. The only check in place is the judicial overview of the courts. Without such overview on the legislation of Basic Laws, the majority can do whatever it wants and without the reasonableness standard, there is a severe blow to the rule of law, without oversight on government decisions,” he said.

Israel’s parliamentary system, in which multi-party coalitions form a government, means that in practice any government usually controls the parliament simply by virtue of its majority.

With Israel busy with the current war, Netanyahu and other ministers have said that their reform plans are being shelved for now.

However, Justice Minister Yariv Levin, the driving force behind the reform, said on Monday that the ruling “will not stay our hand.” That position could lead to a constitutional crisis.

“It is the government that will determine whether we will be in a crisis or not,” Fuchs said. He said a crisis would ensue “if the government decides not to uphold a verdict the next time a case is heard and the court rules that a government decision is unreasonable.”

In January 2023, the High Court used the reasonableness standard to block the appointment of prominent Shas party politician Aryeh Deri as a government minister. Deri had previously been convicted of tax fraud, and, in addition, as part of a plea bargain that won him a suspended sentence, he indicated that he was quitting politics. The court ruled that given both those factors, appointing him a minister would be “severely unreasonable.”

The majority of the judges ruled that there is judicial overview of Basic Laws if those harm the nucleus of Israeli democracy. This means the rest of their plans would have also been nullified had the government moved forward with them.

Still pending is a court decision on far-right politician Itamar Ben-Gvir’s appointment as national security minister, a position he has held since 2022. Ben-Gvir has convictions for incitement to racism and supporting a terrorist organization.

“The majority of the judges ruled that there is judicial overview of Basic Laws if those harm the nucleus of Israeli democracy,” Roee Neuman, one of the leading organizers of the anti-reform protests, told The Media Line. “This means the rest of their plans would have also been nullified had the government moved forward with them.”

Throughout the protests, Neuman and others warned that one consequence of the internal divisions over the reforms was damage to Israel’s deterrent capacity. The murderous attack by Hamas on Oct. 7, in which over 1,200 people were killed and more than 240 abducted, was proof of this for many.

There was criticism of the court’s decision not to delay the publication of its ruling, especially by those opposed to the ruling.

“At a time when thousands of Israeli soldiers are risking their lives in the Gaza Strip, this happens behind their backs,” Lev said. “When they return to Israel, they will find out that suddenly their political rights have been relinquished from them. There are entire parts of society who will open their eyes the day after the war and discover they have been denied their rights, and the results of this make me worry.”

Opposition politician Avigdor Lieberman, a staunch Netanyahu opponent, was also uneasy with the timing of the ruling.

“There will be plenty of time for arguments between us, now is the time to win [the war],” Lieberman posted on social media platform X.

The Hamas attack and the subsequent war have resulted in plummeting support for the Netanyahu government, but there is still significant political support for the reforms, Fuch said.

“There is still a majority in the Knesset that supports the reform. The war could also create even more nationalistic feelings and a desire for the government to have more authority,” he said.

Neuman said that for now Israelis have set aside their differences and the protest movement has shifted its focus to respond to needs during the war.

“On October 7, we decided to stop dealing with the coup [by the government against the judiciary] and started to take care of everything that is needed in order to make Israel healthy again, and here there is a lot of work that needs to be done. In the future, this means making sure we have a leadership that does this,” he said.