Israel Faces Constitutional Crisis as Supreme Court Debate Approaches, Experts Say
Experts warn Israel’s current government could further enflame national tensions ahead of next month’s supreme court showdown
The tension in Israel is building ahead of a critical Supreme Court hearing scheduled for next month in which a contentious piece of legislation will be debated and perhaps struck down.
Several petitions were submitted to the court after the Israeli parliament, the Knesset, approved an amendment to Basic Law: The Judiciary that bars the High Court of Justice from annulling government actions on the grounds of their “unreasonableness.”
The hearing, scheduled for September 12, will be before a full bench of 15 justices, due to the delicate nature of the matter. This is unprecedented in the court’s history. The Israeli Supreme Court usually hears cases with panels of three justices, but in particularly consequential and controversial cases, the panel may be expanded. It has, however, never before been expanded beyond 11 justices.
The attorney general, who usually represents the government on such matters, will not be doing so in this case, as she says she cannot defend the law. The coalition will be represented by a private lawyer, who has asked for a delay in the discussion, claiming to need more time to study the different petitions. The court has yet to decide on the issue. Its decision to delay could provide a further twist in the already intricate plot that has been unfolding between the judiciary and the government in recent months.
When the law passed last month, its approval provided further fuel for the mass protest movement that has emerged since the swearing-in of the government late last year.
The law was the first in a series of changes to Israel’s judiciary that the government, led by Prime Minister Benjamin Netanyahu, intends to legislate. The government’s aim is to curb the authority of the Supreme Court. Netanyahu and his allies say the court has accumulated too much power in recent decades, often inserting itself into political decisions despite it not being an elected body. Should the Supreme Court strike down the law, it would provide further justification for the coalition’s claims.
Opponents of the overhaul say it will severely weaken Israel’s democracy, in which the courts serve as the only real check on the power of the legislative and executive branches. They see the courts and specifically the reasonability standard as a shield from corruption, and the judiciary as the protector of human and civil rights in a country that lacks a constitution.
The challenge the court faces is double. First it has to decide whether it even has the authority to intervene in the legislation of a basic law or an amendment of one. The judges differ on this.
“The challenge the court faces is double,” Professor Oded Modrick, a former Tel Aviv District Court judge, told The Media Line. “First it has to decide whether it even has the authority to intervene in the legislation of a basic law or an amendment of one. The judges differ on this.”
Should the court strike down the amendment to the basic law, it would be a first. Until now, the court has not annulled basic laws in part or in whole. Israel’s parliament has legislated these laws—currently 14 in number—over the past 65 years to deal with issues at the heart of the government, such as the role of its principal branches and the protection of basic civil liberties. They have been treated as having semi-constitutional status, but most can be amended by a regular majority of the quorum, not necessarily a majority of 61 out of 120 Knesset members.
“The second and tougher challenge for the Supreme Court is that it will have to determine whether the amendment changes the character of the State of Israel as a democracy or deprives the court of its powers, thus canceling one of the branches of government and constituting a regime change,” Modrick said.
According to Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, there is a fair chance that the court will strike down the law. He also offers another alternative.
“The court could give a very emasculated interpretation of the law that would limit the areas in which the reasonability standard cannot be used, for example when dealing with government appointments,” Fuchs told The Media Line.
Just recently, the high court canceled the appointment of a prominent politician, Shas party leader Aryeh Deri, as a government minister on the basis of the appointment’s unreasonableness. Deri had been convicted of criminal offenses twice by Israeli courts, and as part of a settlement in his last conviction, for tax fraud, he vowed to not hold any ministerial positions. Nevertheless, Netanyahu wanted Deri, a key ally, in the cabinet to secure his political support.
For those who favor the current government, the court’s intervention in the appointment was an example of its overreach. For the opposition, it was a case of the court exercising appropriate power to prevent corruption.
Last week, when Israeli media reported the coalition was seeking to postpone the Supreme Court debate on the law, there was speculation that there were reasons behind the request other than needing time to prepare. Supreme Court President Esther Hayut and Justice Anat Baron are both set to retire in mid-October. Hayut has been under intense criticism from the government. Having expressed her reservations about the government’s planned overhaul, she was deemed biased by the coalition and unfit to rule on the matter.
Since the Knesset abolished the reasonability standard last month, the country has been in limbo. Fears of a constitutional crisis appear to be real, as the judicial and executive branches could clash on who to follow in case the court strikes down the law.
According to Modrick, chances for such a crisis appear slim.
“In any case, such a crisis will not be imminent or very clear,” he said. “If the law is struck down, the reasonability standard will be a tool for the courts to use once again. This does not topple the government or put the police in a situation in which it does not know how to act or whom to obey.”
A constitutional crisis, however, will not necessarily be directly related to the reasonability standard.
This is a deep question about the authority of the Supreme Court. The very fact that the Supreme Court is ruling in such a matter makes it the supreme normative authority above the Knesset and this will lead to major crisis.
According to Attorney Yotam Eyal, an expert in constitutional and public law and CEO of the Legal Forum for Israel, the crisis will be between the Supreme Court and the government. He says the coalition, which must have the support of a parliamentary majority and thus controls both the executive and legislative branches, will be paralyzed by fear that the courts will strike down any legislation.
“This is a deep question about the authority of the Supreme Court,” Eyal told The Media Line. “The very fact that the Supreme Court is ruling in such a matter makes it the supreme normative authority above the Knesset and this will lead to major crisis.”
In various interviews, Netanyahu has evaded answering whether his government would abide by a ruling that strikes down the law.
“In the end, it is the government that will decide whether there is a crisis or not,” Fuchs said. “If the government will not accept a ruling that strikes down the law, this will be much more than a theoretical crisis.”
Hayut, who has the authority to decide on the timing of the hearing, may want to resist attempts to delay the discussion in order to avoid a lengthy period of uncertainty. But she also has other interests.
Further complicating matters is Justice Minister Yariv Levin’s refusal to convene the judicial selection committee due to his dissatisfaction with its current staffing. If the court discussion is delayed beyond Hayut and Baron’s retirement, this could impact which judges will be on the bench. They cannot be replaced until the committee is convened.
“This is not a good outcome for the activist side of the bench,” Eyal said. “The majority of the judges will be conservative ones, and this is not what Hayut wants; she will not have any control over the outcome or the ruling.”
In the weeks ahead, tensions will likely continue to rise. Netanyahu’s ambiguous response to the question of obedience to the court and his coalition partners’ zealous opposition to many of the judges will likely put the executive branch on a collision course with the judiciary.
“We have no idea what this will look like; it is a situation we have never been in. If the government won’t obey the courts, citizens might also view themselves as not obligated to do so. This is what chaos looks like,” Fuchs said.
