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High Court hearing on controversial law looks set to deepen Israel’s constitutional crisis
The next question is whether Israeli Prime Minister Benjamin Netanyahu and his hardline coalition will abide by the court’s ruling if the ‘reasonableness clause’ legislation is struck down.
On Monday, one week after the government of Prime Minister Benjamin Netanyahu passed its controversial “reasonableness clause” curtailing the Supreme Court’s judicial review, Israel’s Supreme Court President Esther Hayut announced that the High Court of Justice would convene a full panel of 15 judges next month to hear and review a slew of legal petitions challenging the legislation’s legitimacy.
The government’s legislation, and the High Court’s review of that legislation, which limits the power of the court to overrule government decisions, is leading Israel into unchartered constitutional territory. It is also setting the Jewish state up for a seismic clash between the government and the legislature on one side, and the judiciary on the other, analysts and legal experts interviewed by Jewish Insider said this week.
Immediately following the passage of the legislation, several organizations and individuals submitted legal petitions calling on the Supreme Court, which becomes the High Court when debating constitutional matters, to strike down the law. The hearing for those petitions, which is expected to be broadcast live, is now set for Sept. 12.
“It will be by far the most fateful, most dramatic and the most contentious legal hearing ever held in Israel,” Amotz Asa-El, a fellow at the Shalom Hartman Institute, told JI.
“Legally speaking, of course, [the court] can and does have the option to strike down the legislation – the question is will they do it?” said Asa-El, adding that the court has three options: endorse, reject or issue a more ambiguous ruling.
“In all likelihood, especially because the forum of  justices is so big, the first thing that is reasonable to predict is that they will split into three camps – the two extremes will either endorse or reject [the legislation], and in between will be those who say something that isn’t either of those,” he theorized. “What that might end up being is some kind of a ruling that says the legislation is legitimate, but in the same breath it will also interpret it in a way that will empty it of its intended content.”
Asa-El explained that the justices – a simple majority is needed to reach a conclusive ruling – “could say something like, ‘We understand this legislation effectively allows us to continue to critique government action as unreasonable,’” and will list all the reasons why. This kind of interpretation, when used in future Supreme Court rulings, he said, “will empty the amended law of the content that [Justice Minister Yariv] Levin intended it to state.”
Netanyahu and his ruling Likud party have hinted that there is a possibility they will not abide by the court’s ruling if it rejects or challenges the legislation. Following the Supreme Court announcement that the High Court would hear the legal petitions, Likud issued a statement saying that Israeli governments “have always been careful to respect the law and the ruling of the court, and the court has always been careful to respect the Basic Laws.”
“These two principles form the basis of the rule of law in Israel and of the balance between the branches of authority in any democracy,” the statement continued. “Any deviation from one of these principles will seriously harm Israel’s democracy.”
The prime minister echoed his party’s message in multiple interviews with English-language media in the United States, refusing to commit to accept the court ruling if the court decides not to accept the government’s legislation.
“We have to follow two rules,” Netanyahu told NBC News’ Raf Sanchez. “Israeli governments abide by decisions of the Supreme Court and the Supreme Court respects basic laws; we should keep these basic principles and we do.”
“I hope they don’t strike it down because we should abide by both rules,” Netanyahu responded when pressed on the issue. “It’s a peculiar thing — it would be like in American terms, the Supreme Court that is charged with keeping the Constitution would nullify a constitutional amendment as unconstitutional; it sort of turns on itself and does not make sense.”
Since Netanyahu returned to power at the helm of a right-wing, religious coalition eight months ago, the role of the judiciary, the courts and its judges, has been at the center of a furious public debate. A controversial proposal by Levin and Knesset Member Simcha Rothman, the chairman of the Knesset Constitution, Law, and Justice Committee, to significantly overhaul the judiciary over claims that it operates beyond its given power has led to broad concerns in Israel and abroad over the future of the Jewish state’s democracy and prompted hundreds of thousands of Israelis to stage weekly demonstrations.
Professor Suzie Navot, vice president of research at the Israel Democracy Institute, told JI that because Israel has no formal or written constitution, with only a handful of basic laws that have been granted constitutional status by the Supreme Court and are very easy to enact and easily amended, the system is fragile and cannot be compared to the U.S.
“We have 120 members in the Knesset and 61 votes are all you need to change everything – to change all the Basic Laws, to change the power of the court, the system of government, to become a non-democratic state, to delete all human rights, and it means that in Israel and only is Israel, 61 is ultimate power,” she said.
“We do not have a written constitution like in the U.S., we do not have a division of authority between two houses that are elected in different ways, we do not have the right of a veto given to the president or the legislature, we do not have a federal structure nor regional elections; we have nothing which means that the only branch that can limit this absolute power is the Supreme Court,” explained Navot.
Navot, who is considered one of Israel’s top constitutional law experts, noted that while this is not the first time the High Court will hear a petition challenging a basic law, it is the first time that all 15 judges will sit together to decide the fate of the legislation.
“You will hear the coalition saying that the court has no power to strike down a basic law, but the court has all the tools it needs to strike it down because the idea is that the Knesset does not have absolute power and the Knesset cannot revoke or severely infringe on the basic powers of Israel as a democratic and Jewish state,” she said.
And, Navot added, if the court does decide to strike it down, the government will have no choice but to comply.
“I do not see any other possibility other than for it to comply and accept the decision,” she said. “If the government does not accept the court’s decision, why should an ordinary citizen accept a court’s decision? That for me is the basic principle of the rule of law.”
Barak Medina, a law professor at the Hebrew University of Jerusalem, also said it was highly unlikely that the government would outright ignore the court if it decides to reject the legislation, or issues a narrower ruling.
However, he also said he believes that the court is unlikely to ignore the mass protests, as well as the deep political divisions, that have overtaken Israel for the past eight months as it contemplates its decision.
“We are still at an abstract level and not close to a full-blown constitutional crisis just yet,” explained Medina. “What we are talking about right now is an amendment to the basic law and abstract review of that law; no concrete measure has been taken yet by the government to determine whether it’s legal or not.”
Medina highlighted possible test-case scenarios, such as if Netanyahu decided to fire the country’s attorney general, Gali Baharav Miara, with whom he and his government have repeatedly clashed over the past eight months. Another possible looming conflict: if he tries to appoint former Interior Minister Aryeh Deri, who was prevented from serving in the government by the court based on the reasonableness standard, after multiple criminal convictions for bribery and fraud.
However, he added, the bigger question is, “what happens if the court decides not to strike down this amendment?”
“We know Israel is in turmoil these days and there is concern that if the court decides not to intervene then it could substantially increase the protests and the situation will get much worse,” suggested Medina. “That is when we can start talking about a real constitutional crisis.”