Who will have the final say: the Supreme Court or the Knesset?

Where this goes from here is far from clear - and it is still possible President Isaac Herzog’s compromise track will yield fruit

September 14, 2023 11:24

Another historic week in Israel political history as, for the first time ever, all 15 members of the High Court of Justices convened in Jerusalem.

In a marathon session lasting more than 13 hours, they listened to petitions against the amendment to ‘Basic Law: The Judiciary’, that cancels the court’s ability to use reasonability as grounds for striking down decisions and appointments made by the cabinet and the prime minister.

Since the judicial reform agenda was introduced nine months ago, and for all its grand designs, so far cancelling reasonability is the only legal reform to actually be passed into law.

It’s worth recalling that early in the life of this government (Benjamin Netanyahu’s sixth) the court overruled the appointment of Shas leader Aryeh Deri and banned him from serving as a minister on the grounds that having reneged on his plea bargain his appointment was “extremely unreasonable”.

This catalyst spurred MK Simcha Rothman, chairman of the Knesset’s Constitution, Law and Justice Committee, to advance cancellation of the court’s use of reasonability. One of the arguments the petitioners deployed is that Rothman did not follow conventional procedure. This law was originally introduced to the committee as Rothman’s private member’s bill and fast-tracked by him, circumventing a more conventional path.

Another argument is that in the lead-up to the vote the prime minister did not honour the IDF chief of staff’s request to brief him on the security ramifications of passing the bill.

This relates to concern over unity among the ranks but also touches on the threat that a weakening of the judiciary could expose IDF veterans to international tribunals. So critics will argue it was ill-conceived and did not take into consideration a broad enough examination of the repercussions.

It is precisely because so much of this government’s behaviour appears unreasonable that the (dry and technical issue) of reasonability resonates so strongly.

Compounding this is the possibility that if overturned it would be the first time the court has intervened and rejected a quasi-constitutional Basic Law. Does the court have the right to decide its own jurisdiction, or is that for parliament to decide?

Another aspect of the debate this week revolves around the vague distinction between a Basic and a regular law. Observers are left with the impression that a Basic Law just has the word “Basic” inserted into the title (like all other laws it needs only to pass three readings by a simple majority).

One possible outcome of this episode could be that the criteria of a Basic Law are tightened so that, for example, it would require a special majority or the bill passed by two separate Knesset terms.

The essence here is that one side cannot use a simple majority to change the rules of the game. Rothman struck a belligerent tone as the principle of “majority rule” seems to be the single most important factor in his definition of democracy. The judges patiently explained to him that democracy was more complex.

The Israeli media devoted full and transparent coverage of the hearing, though it is not clear how much the details of the debate galvanised the wider public. Even though the country is bitterly divided, there is a silent majority holding out hope that a compromise can still be found.

According to consistent polling, there is limited public support for the reforms as currently proposed. This did not stop the Likud issuing a combative statement during the proceedings: “If the court can cancel Basic Laws, it makes itself sovereign instead of the people. This extreme step will undermine the foundation of democracy. This is a red line that must not be crossed.”

The truth is that even the Likud’s parliamentary faction appears split on this issue. The pro-reform camp led by Justice Minister Yariv Levin and other hardline Likudniks like Dudi Amsalem, Tali Gottlieb and Miri Regev has aligned with the hard-right ministers Bezalel Smotrich and Itamar Ben-Gvir.

Netanyahu himself has continued to surround himself with the relative moderates — foreign and defence ministers Yoav Gallant and Eli Cohen and his closest allies: Strategic Affairs Minister Ron Dermer, Intelligence Minister Gila Gamliel and veteran pal National Security Adviser Tzachi Hanegbi:

One of the most striking moments in the hearing was when Ilan Bombach, the private lawyer drafted in to represent the government when the attorney-general refused to defend the law, questioned the reliance on Israel’s Declaration of Independence.

Bombach suggested, “The 37 people who signed it were not elected and did not represent Israeli society at that time. It’s unacceptable.” Several judges pushed back, highlighting the significance of the foundational text.

Where this goes from here is far from clear. The judges could take several weeks (if not months) to reveal their considered opinion. Meanwhile, it is still possible President Isaac Herzog’s compromise track will yield fruit and pave a pathway back to reasonable governance.

Richard Pater is chief executive of BICOM and a political analyst based in Jerusalem

September 14, 2023 11:24

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