Israel’s Supreme Court faces dilemma of deciding on a law that limits its own functions

The Supreme Court of Israel is at a crossroad; it has to examine a controversial law, approved by parliament this Monday, which effectively deprives it of powers. The law strips the court of its power to block government actions and appointments on the basis that they are “unreasonable.” After receiving eight appeals in 48 hours, the court on Wednesday decided to let it enter into force, although it will hear challenges against it in September, when the Knesset returns from recess.

This is in response to the request of the Movement for Quality Government in Israel, a civil society group that considers the law to represent a “substantive change in the fundamental structure of Israeli parliamentary democracy and the character of the Government.” The law is the first great victory by the Benjamin Netanyahu administration in its battle over the judicial reform that it has been promoting since January, despite massive street protests.

Aeyal Gross, a professor of Constitutional and International Law at Tel Aviv University, believes that the announcement “indicates nothing a priori” about the court’s position, and that it may choose not to rule on the law in the abstract and wait for its first practical consequence before issuing a decision.

However, he sees a loophole in what the Supreme Court calls the parliamentary approval of a “constitutional amendment [that is] unconstitutional.” Gross said in a telephone conversation that, if the court finally opts to repeal it and the executive refuses to comply — “which I doubt would happen,” the country would enter a constitutional crisis. Although full political terms are rarely completed in Israel, in theory there are no elections scheduled before 2026.

The first dilemma for the court involves being forced to decide on a rule that affects its own functions and that no other national court has the power to analyze. Even more so when any criticism will be easily interpreted by the government as proof of the need for the rule. In other words, an adverse ruling would reinforce the argument of the coalition government — made up of Prime Minister Benjamin Netanyahu’s party (Likud), radical right-wingers and ultra-orthodox — that it is essential to cut the court’s powers because it intervenes excessively, is biased against the right and has awarded itself powers it does not have the right to have.

The next dilemma is the one that most divides the experts, partly because it ventures into uncharted waters. What parliament approved on Monday, with 64 votes in favor and none against (the 56 opposition lawmakers walked out of the chamber in protest before the last reading) is an amendment to one of the 13 basic laws by which Israel is guided in the absence of a Constitution.

Since its foundation in 1948, the country has been debating whether or not to endow itself with a Magna Carta, but finally opted for the Knesset to promulgate basic laws on crucial issues, partly due to the deep divergences on matters such as the role of religion in the State. In the 1990s, the then president of the Supreme Court and the most important judge in the country’s history, Aharon Barak, ruled that the Supreme Court has the right to annul any norm that conflicts with any basic law, which further underlined its constitutional nature. Since then, it has happened 22 times, but never with a basic law. And the one amended on Monday is a basic law.

The government has already made a move ahead of a possible rejection of the amendment by the Supreme Court. Netanyahu stressed on Tuesday that the court “is not authorized” to do so, and Likud sources told the newspaper Maariv that such a move would be “a nuclear weapon that should never be used.” “If the Supreme Court repeals a basic law, it will be the straw that breaks the camel’s back, and it will generate even more chaos,” they said. “It would be an attempt to reverse the democratic decision made by millions of citizens and hand over to an unelected bureaucracy the power to oust a prime minister […] The Supreme Court is in a difficult situation and must tread carefully.”

The Minister of Culture and Sports, Miki Zohar, has also asserted that “there is no more undemocratic act than annulling a basic law approved by a majority vote in a legislature that emerged from democratic elections.”

Legal basis

Amir Fuchs, a senior researcher at the Jerusalem-based think tank Israel Democracy Institute, believes that the court has a legal basis to strike down the reform, due to its possible conflict with another basic norm that determines that Israel is a Jewish, democratic state. “If a law changes the character of the country and affects the separation of powers, I think there is ground and a strong argument to act,” he says by phone, before stressing that the Supreme Court is not facing a conflict of interest, since its justices lack personal involvement in the case under study. It is, he adds, a “situation similar” to that of a parliament when it makes decisions on matters that affect it.

Fuchs points out two elements to support striking down the amendment. One, the interim governments. Without the legal filter of reasonableness, “technically they could do whatever they wanted,” such as last-minute appointments or changes to the electoral system.

The second is the “impact on the rule of law” on a potential dismissal of the government’s legal adviser, Gali Baharav-Miara, who is also the Attorney General of Israel. This is an influential technical position that the executive has had its sights on for a long time. Even more so now that it has revoked a law that prevented Netanyahu from being deposed or declared unfit to hold office due to his indictment for fraud, bribery and breach of trust. Baharav-Miara said on Tuesday that the Knesset abused its authority in March by approving the Incapacitation Law in a bid “to improve Prime Minister Benjamin Netanyahu’s personal legal situation and allow him to operate in defiance of the court’s decision.”

Appointed by the former executive, Baharav-Miara’s functions as legal adviser are to provide guidance to the government, besides heading the Attorney General’s Office and representing the state in court and the public interest in legal matters. Her predecessor, Avijai Mandelblit, formulated a conflict of interest agreement with Netanyahu in 2020 and, in Baharav-Miara’s opinion, he has been violating it for months by getting involved in a judicial reform that could affect his own criminal case for corruption.

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