Everything You Need to Know About yesterday’s Supreme Court vs. Netanyahu Government Drama – and What’s at Stake for Israel

T. Belman. This is a good synopsis but it misses the elephant in the room. I explain in my addendum at the bottom of this article.

This week, for the first time ever, Israel’s entire Supreme Court of 15 justices is hearing petitions challenging a key judicial coup law passed by the Netanyahu government. What does the new law say? Who is contesting it, and why? What are the repercussions of this dramatic confrontation?

By Allison Kaplan Sommer, HAARETZ

No matter the result, September 12, 2023 will be remembered as a historic day for Israeli democracy – and possibly the beginning of a constitutional crisis, or worse.

For the first time ever, an entire Supreme Court of 15 justices is being impaneled to hear petitions challenging a law passed by the Netanyahu government in the Knesset that would alter one of the country’s Basic Laws – the closest thing Israel has to a constitution. If it rules in favor of the petitioners, it will be the first time a Basic Law is disqualified since the first one was passed in 1950.

The law being challenged was passed on July 24 and amends Israel’s Basic Law on the Judiciary. The amendment abolishes what is known as the reasonableness standard, removing the ability of Israel’s Supreme Court to nullify administrative state actions – most notably, political appointments – on the grounds that they are “extremely unreasonable.”

The law eliminating the reasonableness standard was the first piece of legislation to be passed as part of the Netanyahu government’s highly controversial comprehensive overhaul plan, spearheaded by Justice Minister Yariv Levin, to weaken Israel’s judiciary in favor of the ruling political coalition.

The package of legislation introduced by Levin in January would give the coalition the power to override Supreme Court decisions, strike down laws and appoint justices. Opponents protesting the move charge the overhaul will severely damage Israel’s ability to call itself a liberal democracy and have brought millions of Israelis into the streets to protest against it.

The reasonableness amendment passed in the Knesset in July, 64-0, with opposition lawmakers ceremoniously walked out of the hall shouting “Shame!” refusing to dignify the law’s legitimacy by voting against it. As the vote took place, tens of thousands of protesters surrounded the Knesset.

This week, the much-awaited hearing of the formal petitions against the law will take place in what is known as the High Court of Justice, the official name for the Supreme Court when it sits to consider petitions that are not appeals of legal cases.

Normally, Israel’s attorney general would be expected to represent the government’s position in court.

But in this case, Israel’s Attorney General Gali Baharav-Miara has come out forcefully on the side of those challenging the Netanyahu government’s law, saying that “[F]or the first time in the history of the State of Israel, the authority of the Supreme Court to judge and grant relief to individuals and the public, based on its independent judicial judgment, has been stripped away.”

The Netanyahu government’s judicial coup: scenarios for what happens next in Israel

Eliminating the reasonableness clause places the Prime Minister and ministers “above the law,” Baharav-Miara wrote in a legal opinion, a status that contradicts the judiciary’s independence and its role in upholding justice. She came to the assessment that the judges “have no choice” but to annul the law.

Due to the sharp disagreement between the Attorney General and the Netanyahu government, the government will be represented in the hearing by Ilan Bombach, a private attorney, at the request of Justice Minister Levin.

Presiding over the hearing will be Supreme Court President Esther Hayut, a month before she retires from her post as required by law on her 70th birthday on October 16. Hayut, however, is permitted to issue opinions for three months following her retirement.

President of the Supreme Court of Israel Esther Hayut and all fifteen justices assemble to hear petitions against the reasonableness standard law in the High Court in JerusalemCredit: POOL/ REUTERS

What does the ‘reasonableness standard’ mean?

The Supreme Court hearing focuses on petitions that challenge the July 24 law and thus protect what is called the ‘Reasonableness Standard.’ This standard allows Israel’s courts to invalidate any “extremely unreasonable” decision made by elected officials – government, prime minister, minister or lawmakers – including decisions on appointments and dismissals.

Abolishing this standard significantly reduces judicial review of the government and its officials, and makes it difficult for Supreme Court justices to intervene when elected officials make arbitrary, extreme or corrupt decisions.

Technically, the law is an amendment to 1984’s Basic Law on the Judiciary. It adds a paragraph to the Basic Law stating: “In spite of what is stated in this Basic Law, those holding judicial power by law, including the Supreme Court sitting as the High Court of Justice, shall not hear [a case] nor issue an order against the government, the prime minister or a government minister, on the reasonableness of their decision; in this section, ‘decision’ means any decision, including on appointments, or a decision to refrain from exercising authority.”

Who is challenging the Netanyahu government’s abolition of the reasonableness standard?

The multiple petitions challenging the reasonableness law to be heard Tuesday have been filed by a list of groups including the Israel Bar Association, the Movement for a Democratic Israel and the Movement for Quality Government, and the Association for Civil Rights in Israel. There are also petitions filed by groups of individual citizens, as well as the leading opposition party, Yesh Atid.

What do the petitions argue?

All of the petitions highlight three arguments challenging the legitimacy of the new law. Legal experts say the three points are considered to be the best legal arguments against the law because they rest on precedent: They have been used by by Israeli courts in the past, and are common arguments challenging changes to constitutions in other countries.

The key arguments are:

  • Misuse of constitutional powers

This argument is based on the assumption that amendments to the Basic Laws must address broad legal issues such as government structure, protection of human rights and separation of powers between authorities. The amendments are supposed to be based on principles and represent permanent changes, not temporary tweaks in order to resolve a specific issue faced by a particular government.

If the Knesset exercises its inherent authority improperly and enacts laws that are considered “personal” or “retroactive,” the judiciary is authorized to intervene through what is known as the misuse of constitutional powers doctrine.

The underlying assumption in this argument is that the ruling coalition is attempting to change Basic Laws in order to accomplish specific goals that further its interests.

In the case of the Netanyahu government, one of those goals would be to fire Attorney General Gali Baharav-Miara – a repeated thorn in its side – and replace her with a more amenable legal head without having that decision overturned by the courts. Replacing Baharav-Miara could be seen as directly serving Netanyahu’s interests, given that he is currently a defendant in a criminal trial.

Another coalition goal the law serves would be allowing it to uphold the decision by Justice Minister Levin to indefinitely suspend convening the Judicial Appointments Committee until its composition is changed to his liking (he is attempting to achieve this through another law in the judicial overhaul). Without the law change, the court could declare such a move “unreasonable” and force him to do so.

The phrase in the law referring to “a decision to refrain from exercising authority” is believed to refer directly to the case of refusing to convene the appointments committee.

This argument was successfully used in May 2021 when the High Court ruled 6-3 that the Knesset had “misused” its power to change the Basic Laws in order to solve a political problem for narrow coalition needs when Netanyahu attempted, for political reasons, to change a budget arrangement that had been the basis for the formation of his government. The ruling said the Knesset had “bypassed” a permanent constitutional arrangement and “misused its constituent authority to change the Basic Laws.”

  • ‘Unconstitutional constitutional amendment’

This opaque phrase means simply that the Knesset’s attempt to change a Basic Law is, in and of itself, unconstitutional.

Several petitions against the law argue that eliminating the reasonableness standard severely harms separation of powers between the judiciary and elected government leaders. This means that the law puts Israel’s democratic character in danger. This argument is being made against the reasonableness law – but will likely also appear in challenges to all pieces of the judicial overhaul should they be passed by the Knesset.

This is the most straightforward challenge to the law and, in the opinion of Dr. Amir Fuchs of the Israel Democracy Institute, “represents the strongest argument: that the law goes against the core values of Israel as a Jewish and democratic state.”

Fuchs believes that “a probability exists that the court will rule that this is an unconstitutional constitutional amendment.”

He points to three elements of the law’s violation of “core values”: proper separation of powers; the rule of law; and free and fair elections.

The law clearly harms the separation of powers by eliminating a key power of the judiciary.

Regarding the rule of law, Fuchs notes that Supreme Court President Esther Hayut has explicitly stated that reasonableness is crucial when it comes to maintaining the rule of law within the government. “If we assume the reasonable standard is what protects the attorney general from being fired – certainly the government’s ability to fire the chief prosecutor and top legal adviser is a blow to the rule of law,” he says.

It is less obvious how reasonableness relates to free and fair elections, but Fuchs notes that all of Israel’s rules regarding the powers of caretaker governments between elections and the swearing-in of new governments “has come from the courts using the reasonableness standard. So, if you lose the reasonableness standard, you lose a free and fair election.”

  • Flawed legislative process

Several of the petitions challenging the reasonableness law argue that it is illegitimate and should be nullified because of the violation of proper procedures leading up to its passage.

Legislation in the Knesset originates and is put forward in three forms: government bills, committee bills and private member bills.

The reasonableness bill was sponsored by the Knesset Constitution, Law and Justice Committee headed by Religious Zionism lawmaker Simcha Rothman. He is a fierce proponent of the judicial overhaul, which he helped design after spending much of his career lobbying for such changes. Rothman has been accused during committee deliberations on the reasonable law – along with other overhaul legislation – of bullying experts and opposition members, and rushing the laws forward without the due consideration and debate normally afforded such important legislation.

Protesters in Tel Aviv hold banner depicting Israeli Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin, Finance Minister Bezalel Smotrich, National Security Minister Itamar Ben-Gvir and Head of the Knesset Constitution, Law and Justice Committee Simcha RothmanCredit: ILAN ROSENBERG/ REUTERS

The strongest technical argument regarding flaws in the procedure is that Rothman used his chairmanship to initiate the bill through the committee. This is a rare route for legislation in Israel, bypassing the requirements of a government-initiated bill.

In fact, the bill was “essentially Rothman’s private bill and shouldn’t have originated in the committee in the first place,” explains Dr. Meital Pinto, a senior lecturer at Zefat Academic College and Ono Academic College. “But Rothman understood that a private member’s bill – as opposed to a committee-sponsored bill – requires much more time to pass, so he took advantage of his position as head of the constitutional committee in the Knesset and passed it quickly that way.”

State security and The Hague

An additional petition to be heard by the Court has been made by a military officer whose identity remains classified to protect his safety and does not focus on legal arguments but rather on security issues.

This petition raises concerns regarding the exposure of members of the security establishment to judgment by the International Criminal Court in The Hague and in foreign countries. Currently, the understanding that Israel enjoys a robust and independent judiciary has protected IDF officers from international prosecution. There are worries that if the courts are stripped of their power, such prosecutions will go forward.

The petition also argues that there were flaws in the legislative process ahead of the law’s passage after senior officials, including Prime Minister Benjamin Netanyahu, willfully avoided being briefed by top Israel Defense Forces officials to hear how it might damage state security, and the repeated refusal to convene the Knesset Foreign Affairs and Defense Committee. The petition asserts that, deliberately or not, the Knesset voted on the law without having relevant information on the implications for Israel’s national security..

T. Belman.  Due to CJ Aharon Barak’s judicial coup four decades ago, he invested all kinds of powers in the Judiciary which is normally done by a constitution.  The Left and the High Court is desperately trying to hang on to those powers as a given. The coalition wants to undue his coup.

One of those powers was to define Israel’s democracy as a “liberal democracy”.

The AG wrote ““[F]or the first time in the history of the State of Israel, the authority of the Supreme Court to judge and grant relief to individuals and the public, based on its independent judicial judgment, has been stripped away.”” 

“Eliminating the reasonableness clause places the Prime Minister and ministers “above the law,” Baharav-Miara wrote in a legal opinion, a status that contradicts the judiciary’s independence and its role in upholding justice. 

In all constitutional governments, the Constitutions separates the powers and defines the role of each. In the absence of a constitution, Barak substituted his personal preferences and gave the Court the powers he preferred.  This is the law the AG is referring to.

The elephant in the room.

When the left poses as defenders of democracy, they mean “liberal democracy’. This means that Israel must be a state of all its citizens rather than the state of the Jews.  When they say that the Declaration of Independence says that Israel is both  “a democratic and Jewish state”,  they mean a “liberal democracy” and it takes precedence over it being a Jewish state.
Israel is a “Jewish and Democratic State”. What does it mean? 

Martin Sherman argues that the Declaration emphasizes that  it is a Jewish state that is being founded but the left ignores this.

INTO THE FRAY: Distorting the Declaration

That’s the elephant in the room. This is what the battle is all about.

September 13, 2023 | 8 Comments »

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8 Comments / 8 Comments

  1. @peloni

    You misunderstood what I meant by Unity government.

    The last coalition was made up of different parties but it was NOT a Unity government, it was the coalition which the head of the opposition (Netanyahu) was determined to destroy from the start and he said so publicly in a meeting of the opposition members and set it as a goal for the opposition.

    Unity government is the government where there is NO coalition and opposition – there are discussions, etc., etc. about what is good for the country, and every Knesset member has the right to participate in these discussions.

    AND there must be NO sectoral parties because the governance will be about what is good for the whole country and not just for someone’s favorite sector.

    Israel must have an electoral reform first, and a constitution with complete separation of religion and state (yes, this means no financing the Rabbinate, etc.)

  2. @Reader

    Knesset has no business to change or to make laws to suit its corrupt members and their “sectoral” interests

    As elephants go, this appears as a pretty silly one. Recall the bribes paid to the local chapter of the Muslim Brotherhood simply to keep the last govt from collapsing, which was a Unity govt, albeit dominated by the Left.

  3. The elephant in the room is that the Knesset has no business to change or to make laws to suit its corrupt members and their “sectoral” interests, i.e. grabbing as much power and money as they desire.

    The Oriental bazaar which passes for building a coalition must be abolished because it allows unlimited corruption, and every government in Israel must be a unity government, not a coalition-opposition fight that has been ruining the country for too long.

    Israel also needs a constitution with complete separation of religion and state.

    A Jewish state is a state with a Jewish majority which owns and controls the country’s land, everyone doesn’t have to be Hareidi or Religious Zionist, or even conservative to accomplish this – take a look at who actually fought for and created the state of Israel.

  4. It seems my admittedly long comment hit a nerve and has vanished,
    There was simply too much wrong with this article and maybe it is best that my heart-baring has not been published for all to see.

  5. Declaration of Independence declares Israel will be a Jewish State with rights for all its citizens. It does not use the word democracy.

    Israel in practice is a democracy but is lacking a constitution to:

    Define separation of powers between the branches of government;
    Specify more clearly a bill of rights;
    which would naturally incorporate the Basic Laws (as has been the practice plus defined by Israel’s founders;
    Naturally this would include the Nation State Law defining Israel as a Jewish State;
    Should incorporate Declaration of Independence

    The whole judicial reform and the counter movement circuses are because of a lack of a constitution. The far left (smallish in numbers but they have loud voices) seem to lean to a western secular liberal democracy and the majority of the country wants Israel to be a Jewish Nation State which is a democracy.