AP / September 12, 2023
JERUSALEM – Israeli Prime Minister Benjamin Netanyahu’s judicial overhaul plan has plunged the country into nine months of unrest and exposed bitter divisions within Israeli society. On Tuesday, the country’s gaze shifted from the streets to the courtroom, where Supreme Court judges began to deliberate over the very laws meant to curtail their power.
Israel’s High Court is hearing the first of three flashpoint cases in the coming weeks, all dealing with the legality of the overhaul.
Netanyahu unveiled the plan early this year, saying the country’s unelected judges hold too much power over parliament. He is backed by an alliance of ultranationalist and religious parties, each motivated by different grievances against the legal system.
Opponents say the plan will push the country toward authoritarian rule by concentrating power in the hands of Netanyahu and his parliamentary allies.
The court’s rulings could set the stage for a constitutional crisis, casting doubt on who holds ultimate legal authority in the country — parliament or the courts.
HOW DID WE GET HERE ?
But Netanyahu’s government has barreled forward. It passed the first major law in July, barring the Supreme Court from striking down decisions by parliament it deems “unreasonable.”
Judges have used this legal standard in the past to prevent government decisions viewed as unsound or corrupt. Earlier this year, the court blocked the appointment of a politician with past convictions of bribery and tax offenses as finance minister. Netanyahu’s allies say parliament should have the final say over appointments.
A second case will look at a law passed early this year that makes it harder for the country’s attorney general to declare a prime minister unfit and remove him from office.
The new law allows this only in cases of mental or physical incapacitation. Critics say the law was passed to protect Netanyahu while he is on trial for corruption charges.
The third case involves Justice Minister Yariv Levin’s refusal to convene the committee that chooses the country’s judges. Critics accuse Levin, a key architect of the overhaul, of holding up the committee until he can appoint judges sympathetic to the overhaul.
WHY DO THESE CASES MATTER ?
Tuesday’s case is a contest between fundamentally different interpretations of democracy.
Netanyahu and his coalition say that as the people’s elected representatives, they have a democratic mandate to govern without being hobbled by the court.
“A court that sets the laws for itself and decides for itself which laws it operates under is not a court,” Simcha Rothman, another key architect of the overhaul, told the Army Radio station Monday.
Opponents say with Israel’s weak system of checks and balances, the court must retain the power to review and override some government decisions. They say that if the court loses the reasonability standard, Netanyahu’s government could appoint convicted cronies to Cabinet posts, roll back rights for women and minorities, and annex the occupied West Bank.
“This government has already expressed a desire to fire officials like the attorney general and replace them with yes-men that will do whatever the government wants. And the reasonability bill presumably takes away our power to challenge that,” said Noa Sattath, executive director of the Association for Civil Rights in Israel, a group challenging the law.
On September 19, the Supreme Court is set to hear arguments challenging the legality of Levin’s refusal to convene the judicial appointments committee. The final case, on the attorney general’s powers to declare a prime minister incapacitated, is set for September 28.
WHAT ARE THE POSSIBLE OUTCOMES ?
The laws on reasonability and removing the prime minister from office are what are known as “Basic Laws” — major pieces of legislation that serve as a sort of informal constitution, which Israel does not have. While parliament can easily amend Basic Laws with a bare majority, the court itself has never struck down that type of legislation and doing so would thrust Israel into uncharted territory.
Rulings are likely months way, but much is at stake.
If the court strikes down the new laws, senior officials, including Levin, have hinted they won’t respect the ruling. That would plunge Israel into a constitutional crisis, where citizens and the country’s security forces are left to decide which set of orders to follow — the parliament’s or the court’s.
If, on the other hand, the court sides with the government, protesters have vowed to ramp up civil disobedience. They say future measures could include strikes, walkouts, and tax evasion.
Given the controversy surrounding the case, it’s possible that the court will find a way to soften its decision by limiting the implementation of the law without striking it down. It is also possible that a compromise between the coalition and the opposition will be reached, said Amichai Cohen, a constitutional law professor at Ono College and a senior fellow at the Israel Democracy Institute.
“The court has never before faced such an extreme threat,” he said.