Israeli Supreme Court holds first hearing challenging judicial overhaul

Eliyahu Freedman 

Al-Jazeera  /  September 12, 2023

Court case, which follows months of protests, could take weeks or even months, and could set the court up for a showdown with the government.

West Jerusalem The Israeli Supreme Court has held its first hearing on petitions challenging the first pillar of Prime Minister Benjamin Netanyahu’s divisive judicial overhaul.

Netanyahu’s far-right government forced the bill – which curtails the power of the judiciary to strike down laws found by the court to be “extremely unreasonable” – through parliament in July despite mass protests and strikes, including dissent within the military.

The session was held on Tuesday in front of all 15 members of the Supreme Court, for the first time in Israel’s history, highlighting the importance the body is giving to the decision.

Democracy does not die with a few major blows, but rather with many small steps,” Israeli Supreme Court judge Isaac Amit said during the hearing.

The court eventually decided to give the lawyers in court 21 days to add to their argument.

Esther Hayut, the Chief Justice of the Supreme Court, sat in the middle of the Justices’ semi-circular table where she led the hearing, facing a parallel table overflowing with lawyers representing the government, and a group of eight petitioners seeking to have the court overrule the bill.

The courtroom was filled to capacity with a mix of lawyers and politicians, including the German Ambassador to Israel, and was livestreamed.

Even though hearings of the Supreme Court are typically open to the public, on this occasion a security barrier was formed around the building to prevent protestors from disrupting the session, after tens of thousands rallied outside the Court on Monday night.

Democracy dying ?

Inside the arched, white courtroom there were no visible political signs, although one of the respondents representing the Israeli Bar Association, Attorney Nadav Weisman, placed a copy of the book How Democracies Die on a table facing the Justices, alongside a stack of legal papers and notepads.

Kicking off the government’s defence of its legislation was Attorney Yitzhak Bart. He argued that determining whether a bill was “unreasonable” – or what is known as the “reasonableness clauses” – is too vague and liable for abuse. He also justified the drawn-out process to pass the bill, in which 14 hearings were held, as one that allowed diverse voices within the Knesset to weigh in on the new legislation before it was passed.

Hayut sparred with Bart, who claimed that the trend in Western democracies like Canada, Australia and England has been to expand similar clauses, even as the Israeli parliament sought to eliminate them.

One of Netanyahu’s chief lieutenants, parliamentarian Simcha Rothman, cited scriptural verses from the Bible, among other arguments, to claim that the Supreme Court has no authority to oversee a law that limits its own judicial oversight and that the power of the elected parliament ought to be absolute in a democratic system.

Rothman was interrupted by Justice Anat Baron, who pressed him regarding a hypothetical case in which the Knesset “decided that Arabs cannot vote, or that elections happen only once every 10 years”.

Rothman answered by insisting that such scenarios were implausible and that the Knesset itself can guarantee that all of its laws are “reasonable” without the intervention of judges.

The Israeli parliament has, however, passed several laws that rights groups have criticized as attacking the human rights of Palestinians, in particular those living under Israeli occupation – and has actively supported the prolonging of the occupation.

Against the government, a group of eight respondents were also given the chance to argue in favour of repealing the controversial legislation in the marathon hearing, among them the Movement of Quality Government in Israel, and other advocacy organizations.

What comes next ?

“It is the first time there is a real chance that the court will strike down a Basic Law,” explained Amichai Cohen of the Israel Democracy Institute to Al Jazeera, referring to quasi-constitutional legislation that are guiding principles of the country in lieu of a written constitution.

But it could take weeks or months for the Supreme Court to make a ruling in the case.

Next month, however, Hayat and Baron will automatically step down from the court after reaching the age limit of 70.

Some have speculated that Hayat could use the opportunity of her retirement from the court to leave a defiant message by striking down the law completely, but the court may avoid what would be a controversial decision setting it on a warpath with the government.

Meanwhile, the court is already scheduled next week to debate whether Israel’s Judicial Selection Committee must be convened to vote in new justices, as has traditionally been the case.

The case comes after Justice Minister Yariv Levin refused to convene the committee with its current makeup, which he has called “invalid” for a democracy.

Among the government’s planned controversial judicial reforms is an effort to give elected representatives more power to appoint new judges.

Eliyahu Freedman is a Jewish Buddhist of Iraqi descent teaching and writing on Jewish spirituality and sexuality in Jaffa