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A Win For The Judicial Coup: First Domino Down, Constitutional Crisis Will Follow

A Coup in Review

July 28, 2023



Israel is rapidly moving away from democracy, and the most significant blow so far has been dealt, with the confirmation of an amendment to the Basic Law: The Judiciary by the Knesset last Monday. This amendment abolishes the judiciary's power to scrutinize a decision of the government or its elected officials, when such decisions are deemed extremely unreasonable.


Despite some attempts by moderate coalition members to dilute the bill, all efforts failed, revealing the lack of a promised broad consensus by Prime Minister Benjamin Netanyahu. Notably, all opposition members left the Knesset's floor before the final vote, leaving the coalition to vote unanimously with a 64:0 result.


Within just 24 hours of the legislation passing, seven petitions were filed at the Supreme Court, urging the court to strike down the new law. The petitioners also requested the court to prevent the law from taking effect, but the Supreme Court refused this request, which is not uncommon, as there has only been one previous case in which the court stopped a law in such a way.


Jerusalem Protest Judicial Overhaul
Photography by Eitan Salonim, Shatil Stock

The hearing for these petitions is scheduled for September, right after the court's summer recess, and it will involve a broad panel of justices, at least 11 out of the 15 serving on the court. Chief Justice Esther Hayut is likely to preside over this historic case, possibly one of her final cases as she is retiring in October. This means that the court's decision will be handed down quickly because, according to Israeli law, Chief Justice Hayut may only sign off on rulings for 90 days after stepping down.


Will the Court Strike Down the Law?

Regarding the essence of the matter, the petitioners focus on three main arguments to strike down the law.


First, they argue that this amendment to the Basic Law is unconstitutional — a challenging argument given that the Supreme Court has never before struck down a basic law or its amendment on constitutional grounds. However, Chief Justice Hayut has previously mentioned that the court has the authority to do so if a basic law contradicts the foundations of Israel as a Jewish and democratic state.


Second, the petitioners contend that the law is an abuse of the Knesset's constitutional powers, as basic laws should have a general and eternal character, but this law was passed to serve the immediate and specific interests of the current coalition. There is one precedent of the Supreme Court striking down an amendment to a Basic Law based on this argument.


Third, the petitioners argue that the legislative process was flawed. Striking down a law for this reason happened only once in the past, albeit not in relation to a basic law. Given the hasty and aggressive legislative process in this case, this argument could appeal to the more conservative justices.


While it is difficult to predict the Supreme Court's final decision, the chances that the law will be struck down are certainly not zero and appear balanced.


Rocking the Foundations

From a broader perspective, the passing of the unreasonableness law has thrown Israel into unprecedented turmoil, with continuous protests met with severe police reactions.


The law's impact is evident as the disintegration of Israeli society and economy is accelerating. Thousands of vital Israel Defense Force (IDF) reserve volunteers have withdrawn from service, and if they don't change their minds and resume their military training, the IDF could be rendered unfit for battle within weeks. The healthcare system has also been affected, with many medical doctors leaving the country, raising concerns about its integrity. The stock exchange has experienced a significant decline, as has the exchange rate of the Shekel against major currencies, leading international credit rating agencies to issue special warnings about the long-term stability of the Israeli economy.


Despite the government's insistence on the strong foundations of the economy, there are doubts, with brain drain increasing and investment in tech firms declining, indicating a less than promising outlook.


The future remains uncertain as to whether Netanyahu's coalition will push forward with more anti-democratic legislation. The architects of the judicial coup in the government have promised to do so. Netanyahu, on the other hand, announced that the next parts of the judicial overhaul legislation will be done with a broad consensus. The credibility of this promise is doubtful, and the current opposition is unlikely to cooperate.


A constitutional Crisis Looms

A constitutional crisis is now closer than ever.


The Supreme Court is about to hear a petition calling for the striking down of an amendment to the Basic Law: The Government, which entrenches Netanyahu against removal from office. Interestingly, Attorney General Gali Baharav Miara has joined the petitioners in urging the court to strike down this law. Netanyahu, in turn, called on the court not to intervene in this matter.


The Attorney General argues that this amendment is an abuse of the Knesset's constitutional power since it was passed to serve Netanyahu's specific and individual interests.


If the court strikes down this law, it could pave the way for the Attorney General to announce that Netanyahu is unfit to continue serving as Prime Minister, citing his breach of his own declaration before the court, in which he vowed to avoid any matters of state that would impact his criminal trial.


This case, along with the petitions against the unreasonableness law, have put Israel's Supreme Court in the spotlight. The outcomes of these cases and the court's legitimacy in the eyes of the supporters of the judicial coup remain to be seen, especially given the unprecedented political and social divide in the country.


 

Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.


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