Filenews 4 January 2024 - by Noah Feldman
In rare good news from Israel, the country's Supreme Court issued a landmark ruling strengthening the separation of powers against hard-right and far-right attempts to undermine constitutional democracy.
The ruling vindicates the more than one million protesters who took to the streets last year to protest Prime Minister Benjamin Netanyahu's plans to strip the court of its powers of judicial review of government actions. Most importantly, he defends the ideal of the rule of law at a time when Israel is at war and the country's behaviour has been the subject of fierce international criticism.
The most important in history
The 8-7 ruling, handed down on New Year's Day, is the most significant in Israel's history. It follows a year of intense controversy that threatened to split the country in two. If it weren't for the war in Gaza, the court's announcement of its decision, which spans 783 pages in Hebrew, would have led huge crowds into the streets in jubilation, and so would likely have happened in opposition ranks.
The background to the case lies in a series of laws to reform the judicial system proposed by Netanyahu's government from January 2023. The proposals seek to give the government more power to appoint judges and limit the power of the supreme court, which the Israeli right sees as a brake on thwarting its initiatives. Netanyahu himself is currently on trial for corruption, and the court may ultimately have to decide whether or not to go to jail.
The law reforming the judiciary, passed last year by the Knesset at the suggestion of Netanyahu's government — and now overturned by the court — said judges could no longer overturn any actions by the government or its ministers on the grounds that they were "manifestly unjustified." The reasonableness review is a tool of judicial review derived from British administrative law and used for years by the supreme court.
Opponents of the reform saw the proposals as steps toward authoritarianism, similar to those made by conservative right-wing governments in Hungary and Poland. That's why the protesters took to the streets. For them, democracy itself in Israel was at stake.
Verdict
An absolute majority of judges agreed. The main opinion was written by the court's retiring president, Esther Hayut. As Hayut explained, the court first had to decide whether it had the power to annul a so-called "Basic Law," Israel's version of a constitutional amendment. He then had to decide whether that Basic Law was itself unconstitutional.
The president held that the court did have the power and that the Basic Law was indeed unconstitutional.
Hayut's logic went back to Israel's 1948 declaration of independence, which announced that Israel would be a "Jewish and democratic state" and promised that the Knesset would eventually pass a constitution. The constitution, however, was never drafted, a testament to the complex political situation that has plagued the country since its inception.
Instead, the Knesset has, over the years, enacted a number of Basic Laws. The court, beginning in the early 1990s, inaugurated what it called Israel's "constitutional revolution," treating these laws as constitutional and using them as a basis to overturn legislation that violates them.
The result is that Israel has a highly unusual body of constitutional law, which lacks basic rules derived from a single document. Hayut argued that the unique nature of this system was a reason for the court to assert its authority. Israel has a presidential parliamentary democracy, not a presidential one, so judicial review is one of the only ways to maintain the separation of powers.
Judge Daphne Barak-Erez, former dean of Tel Aviv University's Law School who literally wrote the book on administrative law in Israel, pointed out the indescribably significant consequences the law would create. Without checking the reasonableness or otherwise of their actions, he argued, ministers could dismiss civil servants at will or ignore basic rules of the day-to-day exercise of government.
With former U.S. President Donald Trump not named but perhaps fading in the background, Barack-Erez also hinted that ministers exempt from judicial review would be allowed to interfere in peaceful democratic transfers of power.
The more conservative minority justices argued that because the Knesset has the power to create a constitution and draft the Basic Laws, the courts do not have the power to invalidate a Basic Law. These judges expressed their dissatisfaction with what they saw as an usurpation of power by the court.
Justice Noam Solberg went so far as to suggest, at the end of his judgment, that it would be permissible for the Knesset to demand a "unanimous judgment" of the judges to overturn the law — a suggestion that Hayut denounced as a signal to Netanyahu's government to rewrite the Basic Law and resubmit it to the court once it has new members (Hayut and another judge, Both of them, in the majority, have reached mandatory retirement age).
Unity or division?
It seems almost certain that supporters of constitutional democracy in Israel will mythologize this historic decision as an expression of the will of the people – namely against authoritarianism and for the rule of law. The truth is more complicated. Public opinion in Israel remains divided over the country's future, including what its democracy should look like.
When the war in Gaza is finally over, Israel will have to return to these constitutional issues. Only then will it be possible to determine whether the Supreme Court's decision functions more as a unitary than a divisive force.
