Israel’s Supreme Court Faces a Critical Test of Its Power

Israel’s Supreme Court Faces a Critical Test of Its Power

Edited by: TJVNews.com

Israel’s Supreme Court recently found itself embroiled in a high-stakes legal battle with the government, a conflict that delves into fundamental questions surrounding the authority of different branches of government in the country. As was reported by the Wall Street Journal, at the heart of the matter is a new law, akin to a constitutional amendment, that curtails the court’s ability to nullify government decisions deemed “unreasonable in the extreme.” The law is part of Israeli Prime Minister Benjamin Netanyahu’s coalition’s efforts to diminish the court’s power and shift more control to the governing coalition, the report added. However, this move has sparked intense protests, with many fearing it could undermine Israel’s democratic principles.

The controversial overhaul of the judiciary has been a top priority for the governing coalition since Netanyahu’s re-election last year. The WSJ report indicated that proponents of judicial reform have argued that the court has become too activist in recent decades and frequently overrules the will of the people. On the other side, the WSJ reported that critics of the judicial overhaul plan believe that the coalition’s real motive is to weaken the court’s authority, enabling it to pass laws that could erode liberal democracy, introduce religion into more aspects of public life, and deepen Israel’s refusal to relinquish sovereignty in Judea and Samaria; measures that the current court, with its existing powers, would likely oppose.

The law under scrutiny is an amendment to a basic law in Israel, which holds quasi-constitutional status. The WSJ report said that striking down this legislation is equivalent to nullifying a constitutional amendment, an action that Israeli legal scholars suggest could trigger a constitutional crisis. The petitioners challenging the law include civil-society organizations focused on human rights, security, and governance. Remarkably, the attorney general has also requested that the court annul the law—a rare move, since the attorney general argues on behalf of the government before the court when cases arise.

During the hearing, judges grappled with whether this specific law poses a sufficient threat to Israel’s democracy to warrant judicial intervention. As was reported by the WSJ, they emphasized the importance of not frequently nullifying basic laws, reserving such action for situations where there is a genuine threat to the state’s democratic foundations. This hearing represents an unprecedented moment in Israeli legal history, with the court potentially striking down a law akin to a constitutional amendment as unconstitutional.

Speaking to the WSJ, Yaniv Roznai, a professor of constitutional law at Reichman University in Israel said, “This is probably the most important case our court has ever heard. For the first time in our history, the court might strike down a law that is equivalent to a constitutional amendment as unconstitutional.”

“We can’t nullify basic laws every other day. There needs to be a mortal blow to the basic tenets of the state as a democratic state,” said Chief Justice Esther Hayut to a representative for the attorney general, who was arguing in favor of annulling the law, the WSJ reported.

The government’s lawyers argued that judges lack the authority to strike down basic laws, contending that the determination of a basic law’s content lies with the people through elections, the WSJ reported. In response, the justices countered by highlighting that the Knesset cannot pass laws that undermine principles enshrined in the country’s Declaration of Independence, which proclaims Israel as both a democracy and a Jewish state.

Ilan Bombach, the lawyer representing the government  said, “According to what is customary in our country, the one authorized to determine the content of basic laws is the sovereign—it is the people through elections,” as was reported by the WSJ.

In a poignant exchange, Justice Anat Baron questioned coalition lawmaker Simcha Rothman, a prominent supporter of the overhaul, about what would happen if the Knesset passed basic laws that disenfranchised Arab citizens or extended election cycles to a decade, according to the WSJ report. Rothman argued that unelected judges were not the solution to parliamentary failures since they lacked accountability through elections.

Israel doesn’t have a firm, written constitution like the U.S. Instead, the Knesset has passed a series of basic laws since the state’s founding that delineate basic tenets of the state, such as electoral procedures, minting currency, and individual rights, the WSJ reported. Since the mid-1990s, the court has interpreted them as the country’s constitution.

Although the Declaration of Independence isn’t the country’s constitution, justices on Tuesday reinforced the idea in their questions that it stands as a reflection of the values of the state, particularly its Jewish and democratic character, and that the Knesset doesn’t have the authority to pass laws that undermine those, according to the WSJ report.

The court is not expected to reach a decision for several weeks or even months. During this time, the government may choose to amend the law, further delaying a final ruling. The WSJ report stated that if the court decides to strike down the law, it could potentially trigger a constitutional crisis, as Netanyahu has not made his stance clear on whether he would respect such a decision. Members of his coalition have expressed conflicting opinions on the matter, the report added.

Alternatively, the court may opt to send the law back to the Knesset with suggested revisions or uphold the law while limiting its impact through interpretive measures. The WSJ report said the Israeli governments have been increasingly altering basic laws in recent times, intensifying the urgency of determining whether these changes are subject to judicial scrutiny.

The potential consequences of the court’s decision are profound. If the government disregards a court ruling to strike down the law, it could create a dilemma for security authorities, who may need to decide which authority to follow, according to the report. This ongoing conflict raises concerns about the future of Israel’s democratic principles and institutions.

Former Mossad director Ephraim Halevy, who served under Netanyahu, voiced his apprehensions, suggesting that undermining the court could lead Israel down a perilous path, according to the WSJ report. He emphasized that such actions could constitute “the ultimate destruction of the state of Israel.” The court’s verdict will undoubtedly have far-reaching implications for Israel’s democracy and the balance of power among its branches of government.