Historic struggle over democracy lands in Israel’s Supreme Court

After months of political crisis that have already damaged Israel’s economy, military, and social fabric, the front line of what many view as the struggle for Israeli democracy has now reached the Supreme Court.  

Anticipation of the showdown was in the air in Tel Aviv this past Saturday night, when, in the 36th straight week of anti-government protests, Israeli rock icon Shalom Hanoch regaled the estimated 120,000 demonstrators with his 1985 hit protest anthem.

“The Messiah isn’t coming,” he bellowed as the crowd sang along. “The Messiah isn’t calling, either.”

There would be no heavenly intervention, Mr. Hanoch was intimating, to deliver Israel from the government of Prime Minister Benjamin Netanyahu and its monthslong efforts to radically overhaul the country’s judicial system, weaken the independence of the courts, and arrogate to itself potentially unchecked power.

He and the entire crowd knew this week would be fateful: The Supreme Court convened Tuesday to hear petitions against a bill – rammed through parliament in late July after compromise talks were abandoned – that removes the court’s ability to exercise judicial oversight over government decisions deemed “extremely unreasonable.”

Would the court itself intervene?

For the first time ever, the entire panel of 15 justices sat in judgment as lawyers for both sides sparred over the law – dubbed the “Reasonableness Bill” – in a marathon 13-hour session.

And, for the first time ever, legal analysts predict, the justices may in fact strike down a quasi-constitutional Basic Law, of which the Reasonableness Bill is an amendment. (Israel famously has no constitution, with the 13 Basic Laws drafted so far intended as a proto-constitution.)

In another first, an Israeli government is threatening to not abide by a court ruling if it goes against it – setting up what analysts fear could be an unprecedented constitutional crisis between the branches of government.

“This is one of the most important cases in Israeli history,” says Amir Fuchs, a senior researcher at the nonpartisan Israel Democracy Institute. It will dictate not only the future of the Netanyahu government’s entire judicial overhaul agenda but also, both sides contend, the fate of Israel’s democratic system.

Red lines and “anarchy”

The government’s position on the matter was made clear in recent days, in both its written response to the Supreme Court and statements by senior officials: The court has no standing to challenge a Basic Law passed by a majority in parliament.

“If the Court can cancel Basic Laws, it will make itself the sovereign instead of the people,” Mr. Netanyahu’s Likud party said in a statement issued while the hearing was still ongoing Tuesday evening. “This extreme step will undermine the foundations of democracy. This is a red line that must not be crossed.”

Government lawyers had, in a similar vein, warned of “anarchy” if the judges strike down the law, with Knesset Speaker Amir Ohana from the Likud stating that parliament “will not meekly accept its trampling” and suggesting that “the court recognize the limitations of your power.” Prime Minister Netanyahu re-posted Mr. Ohana’s speech in its entirety on his social media accounts.

At the hearing Tuesday, justices seemed less than impressed with the government’s position. Undermining the government case, Attorney General Gali Baharav-Miara – the country’s highest legal official – actively sided with the petitioners against the bill, sending her own representative to urge the court to strike it down.

“Never in history has the attorney general said a law is illegal and the court didn’t agree. This gives a very strong back wind to the petitioners,” says Professor Barak Medina, a law professor at Jerusalem’s Hebrew University, citing a handful of previous cases.

Instead, the government had to enlist a private lawyer, Ilan Bombach, to lead its defense.

Mr. Bombach made the day’s biggest headlines when he intimated that Israel’s Declaration of Independence, a text revered for decades as upholding the country’s Jewish and democratic foundations – especially minority rights – held no constitutional weight and was simply drafted haphazardly by “37 people ... who weren’t elected and aren’t representative of Israeli society at that time.”

Petitioners against the bill included a slew of civil society groups as well as the attorney general’s office, buttressed from the outside by opposition politicians and an estimated 2 million Israelis in total who have taken to the streets at least once in recent months to protest against the government.

“The Court is Supreme,” a massive banner unveiled at the Saturday Tel Aviv demonstration declared. The petitioners have all said they will respect and abide by any decision the court makes – while at the same time imploring the judges to nullify the law.

Untested arguments

According to legal experts, such a highly contentious ruling would likely rest on two main arguments, both of which are relatively untested.

The first would be that the Reasonableness Bill is an “unconstitutional constitutional amendment” that contradicts the core values and essence of Israel as both a Jewish and democratic state.

“You can’t simply establish a new state” via parliamentary legislation, argues Dr. Fuchs of the Israel Democracy Institute. “The legislative process for a Basic Law is the same as for a regular law” – a simple parliamentary majority is all that is required – “so the fact that they pass a law and slap a ‘Basic Law’ title on it” shouldn’t make it beyond review.

Removing the Supreme Court’s ability to use the criteria of “extreme unreasonableness” to review government decisions could, the petitioners argued at the hearing, undermine the separation of powers and rule of law that form the bedrock of Israel’s democratic system.

“There are no other checks and balances in Israel,” says Dr. Fuchs.

The second argument the justices may put forward to strike down the bill may rest on the motivations behind its passage, an issue legal experts call “the abuse of the constitutive and legislative power” of parliament, wherein it misused its power to enact Basic Laws for its own individual and political needs.

Under this scenario, legal experts argue, the fact that Mr. Netanyahu himself is currently on trial for corruption could be a key plank proving conflict of interest and the personalized motives behind the law’s passage.

Legal scholars and even former justices are loath to predict how the current Supreme Court will come down on this case, although what is certain is that a decision will not be immediate. Most analysts expect one by October, after the Jewish High Holidays and just as Chief Justice Esther Hayut and another liberal-leaning justice are set to retire after reaching the mandatory age of 70. But both judges can still issue their decisions by January, before the court may shift more conservative.

During the hearing, the expanded panel of justices grilled both sides, although the main points of conflict came with relation to the government’s position.

“Democracy doesn’t die in a few big hits. Democracy dies in a series of small steps,” said Isaac Amit, currently slated to become the next chief justice. (The government is also seeking to change the appointment process as part of its overall judicial overhaul agenda.)

“Who represents democracy?”

Legal experts say there’s a chance the Supreme Court opts for a middle path whereby it decides the law can stand but chooses to interpret it in a narrower sense, removing its all-encompassing scope.  

Will this satisfy the current government and remove the threat of a constitutional crisis? Analysts are skeptical, and several security chiefs have already intimated in public and private remarks that they will remain loyal to the rule of law and Israeli democracy, and not to the diktats of government ministers.

“All the government needs to do in order to avoid a constitutional crisis is to adhere to the court ruling,” says Dr. Fuchs. “To threaten is much easier than to ignore the court ruling ... and the security chiefs won’t allow the government to simply ignore the ruling.”

What happens next in the battle over Israel’s fundamental character is in the hands of the judges, and subsequently, the government.

“We have a conflict, a battle between two branches of government in Israel. Who represents the people? Who represents democracy? Who has the upper hand? We have never been [here] before. And everyone is going to have to decide who they listen to,” says Professor Reuven Hazan, a political scientist at Hebrew University.

“Any government in Israel – I don’t care if they’re right or left – that brings the country to such a position is a government that is not only incapable of fulfilling its role but [also] a government that sees that what is good for the country is not in its best interest,” Professor Hazan says.

“We should never [have gotten] to this point.”