Israeli High Court effectively ends government’s ‘judicial overhaul’

The landmark decision sent two powerful legal and political messages to the Netanyahu government about the court's authority.

This month’s landmark decision by the Israeli High Court sent two powerful messages to the Israeli government and the Israeli people. The first was legal: in the absence of a formal constitution, the court will continue to regard itself as the protector of the character of the state. That character (though not explicitly stated in the Declaration of Independence) is both Jewish and democratic.

The second message was political: by cementing its position as the final arbiter of the Knesset’s power, the court effectively brought the government’s ‘judicial overhaul’ to an end. The decision was the culmination of a political crisis that divided Israeli society for all of 2023, until the Hamas attacks of October 7.

What the court decided

The court ruled that Israel’s Basic Laws must conform to the nation’s character, in a direct rebuttal to an amendment passed by the Netanyahu government limiting the court’s authority to quash unreasonable decisions made by elected officials. In other words, the court will continue to have the power to over-rule unreasonable government decisions.

A significant majority of the court (12 of the 15 judges) took the view that the court has jurisdiction to adjudicate upon Basic Laws and to intervene in exceptional circumstances (i.e. where the Knesset has deviated from its constitutional mandate).

This jurisdiction ensures that the Knesset does not abuse its parliamentary and legislative powers. In so ruling, the court emphasised that the Knesset is not all-powerful.  It also recognised that the process for passing Basic Laws (which does not differ from that used to pass ordinary legislation) has cheapened them, turning them into political pawns. 

A simple majority (8 of the 15 judges) struck down the amendment in issue on the basis that it substantially infringed upon the essential character of the State of Israel as a democracy.

The wording of the law would have permitted the government, the prime minister and other ministers to make extremely unreasonable decisions, or alternatively, to refuse to make any decision at all – and the court would have been powerless to intervene. This, the majority held, would violate the principle of separation of powers and the rule of law.

The court has shown that it will not be held back by formalism or concerns regarding consistency. It will intervene as and when it deems necessary to do so. Having been persuaded that the pre-October 7 government was willing to make wide-ranging changes to the relationship between the Knesset and the judiciary, and between the government and the people (by a narrow majority), the court has acted to preserve the status quo.

What the critics say

The court’s reasoning is open to debate. It’s now clear that while Basic Laws have constitutional standing, they are also susceptible to judicial review based on supra legal principles and national values distilled by the court.

Additionally, the court struck down the law entirely rather than interpreting it in a manner consistent with the democratic nature of the state. The court’s contention that the law would have infringed upon the separation of powers is somewhat circular. It could only be the case if one assumes that the court should have the power to review all laws passed by the Knesset and all government decisions.

After all, parliamentary sovereignty is an embodiment of democracy and there was no indication that the government had any intention of interfering with elections, the way governments are formed or the way the Knesset functions.

The separation of powers (however it is interpreted) is not mentioned in the Declaration of Independence and so its essentiality (and interpretation) is a product of the court’s worldview. Ultimately, it is for the voters to determine whether to re-elect any government that curtails judicial oversight of its decisions.

Instead, the court chose to override parliamentary sovereignty to protect the status quo. Those opposed to the decision contend that the court has (once again) adopted a paternalistic and activist position which is disconnected from the majority of voters represented by the government.   

What it means Israel

Ultimately, it’s impossible to detach the court’s ruling from the political context in which it was made. Beyond the legal aspects of the case there is a statement by a strong majority of the court that it will not allow the Knesset (or any government) to alter Israel’s Jewish and democratic essence.

Whether the specific amendment in question would have done this is open to debate. The combination of a potentially problematic law with an unstable coalition government (comprised of individuals with varying degrees of regard for liberal democracy) in the context of an existential war seems to have pulled the bench towards conservatism of a kind that is uniquely Israeli.

READ MORE
Israel's Democratic Decline Hasn't Stopped During the Gaza War. In Many Ways It Gotten Worse (Haaretz)
More surveillance, more guns, less freedom of speech: Netanyahu's coalition halted its plan to weaken the judiciary after the October 7 attack, but the war is allowing it to reach many of its goals without it