Can Israel's Supreme Court mitigate threats and avert constitutional crisis?

Israel's High Court of Justice debated for 13 hours Tuesday over petitions to strike down a law adopted by the Knesset last July. All 15 High Court justices convened for the hearing, which was broadcast live by most Israeli news outlets from a room packed with people. 

On several occasions during the debate, the justices expressed criticism of the law, Knesset representatives and the government. 

The eight petitions calling to strike down the law include those submitted by The Movement for Quality Government, The Civil Democratic Movement in Israel and the Israel Bar Association. It is unclear when the court will rule on the issue.

An Israel divided

Israel does not have a constitution. Instead, it has a semi-constitutional set of Basic Laws.

The law being discussed is an amendment to Israel’s Basic Law on the judiciary, which defines the powers and responsibilities of Israeli courts. The "reasonableness standard" is common in Europe. It is a lens through which a country’s legal system examines the lawfulness of legislation or government decisions, whether they infringe on the rights of citizens within reason.

Two months ago, the far-right government of Prime Minister Benjamin Netanyahu passed an amendment canceling the reasonableness standard, diminishing the powers of the High Court to strike down laws and government decisions it deems unreasonable. 

The canceling of the reasonable standard is a key element in the government’s judicial overhaul plan to limit the powers of the judiciary. Another is changing the composition of the committee choosing judges, putting it under the government's control. The right has been claiming that most judges are leftists and liberals who do not represent the majority of Israel’s constituency.

Opponents of the plan say the government is eroding Israeli democracy. For months, hundreds of thousands of Israelis have been demonstrating every Saturday night against the judicial overhaul plan, in what has become the country’s biggest ever social divide. Some 10,000 opponents of the plan demonstrated in Jerusalem Monday evening ahead of the High Court debate, which they see as crucial to the country’s democratic character. 

The hearing was heated. Justice Minister Yariv Levin  and head of the Knesset Law, Constitution and Justice Committee Simcha Rothman, both of whom have been championing the judicial overhaul plan, appeared before the court. They claimed the High Court had no authority to strike down an amendment adopted by the parliament. Attorney General Gali Baharav-Miara refused to represent the government on the issue, deeming the amendment unconstitutional, so the government was represented by private attorney Ilan Bombach. 

Several justices challenged the government’s assertion that the High Court lacks the authority to strike down the amendment.

Constitutional crisis looms

President of the High Court Esther Hayut told Bombach, "You come and block all the courts from granting relief to litigants. There are thousands of individual decisions that ministers accept or delegate authority, decisions that affect citizens, their daily lives. And they come and complain that [the decisions] are unreasonable. … In most cases we don't intervene, but there are cases where relief needs to be given.’’

Justice Yitzhak Amit also addressed Bombach, saying, "The court is the most restrained in the world and hardly uses the reasonableness standard. There are [an average] 1.6 decisions per year based on the reasonableness standard. So why are we gathered here today?"

Amit went on, "The feeling is this: [The government thinks:] we made a bad law. We know this law is bad. Now we will offer you all sorts of tricks to get around it."

Justice Anat Baron asked pointedly, "If the Knesset were to legislate that Arabs have no right to vote or that seculars are forbidden to travel on the Sabbath, shouldn't these decisions be subject to criticism?"

With the Knesset and the government pitted against the High Court, a ruling canceling the law would throw Israel into a constitutional crisis. The legal crisis has already been amplified over the government's refusal to recognize the advisory authority of the attorney general. Netanyahu, Levin and Knesset speaker Amir Ohana have signaled in recent weeks that they will not be obliged to accept the ruling.