Basic Laws on Trial: The Tug of War between Netanyahu’s Coalition and Democracy Moves to the Supreme
A Coup in Review
August 4, 2023
As the Knesset enters its summer hiatus until mid-October, the heated dispute over the judicial coup has transitioned to the legal domain. Supreme Court Chief Justice Esther Hayut has scheduled oral hearings for seven petitions urging the court to invalidate the amendment to the Basic Law: The Judiciary, which nullified the "extreme unreasonableness" standard.
The coalition had anticipated this shift in battlegrounds from parliament to the judiciary. Over the past week, the coalition initiated a campaign to undermine the Supreme Court's authority to evaluate the legality of Basic Laws, a campaign visibly led by Prime Minister Benjamin Netanyahu himself.
During a couple of interviews on American news channels, Netanyahu was bluntly asked if he would respect the Supreme Court's ruling. While the question demanded a binary “yes” or “no” response, Netanyahu subtly insinuated a threat, maintaining that rulings should be honored, but also insisting that the Supreme Court should respect the Knesset and avoid meddling with Basic Laws.
Throughout the week, ministers from Netanyahu's government escalated their combative stance, with some claiming that the Supreme Court lacks the authority to assess the validity of Basic Laws and that any ruling which rejects Basic Laws should not be obeyed.
One possible motive for the immediate assault on the Supreme Court could be a preliminary hearing the court conducted on Thursday. The hearing was about petitions to annul another constitutional amendment — one that protects Prime Minister Benjamin Netanyahu from being temporarily removed from office at the request of the Attorney General. Despite Attorney General Gali Baharav Miara's explicit statement that she has no plans for such action, the coalition expedited this amendment at an unusual pace.
This hastily-approved amendment enabled Netanyahu to intervene in the judicial coup, despite his pledge to the Supreme Court to abstain from any state affairs that conflict with his status as a criminal defendant.
The hearing at the Supreme Court on this amendment was overseen by a panel of three justices, led by Chief Justice Hayut. Notably, the justices emphasized that the Supreme Court has established doctrines that allow it to scrutinize basic laws — a likely response to the coalition's delegitimization campaign. No ruling was announced post-hearing as it's unprecedented for the Supreme Court, when convened in a three-judge panel, to invalidate laws. The possible outcomes would be to dismiss the petitions or, more likely considering the judges' remarks, schedule another hearing with a larger panel of justices.
Can Reasonableness Be Revived?
On September 12th, the Supreme Court will listen to oral arguments for and against rescinding the "Unreasonableness Amendment" in a full panel of 15 justices — a first in the court's history.
The Israeli Supreme Court rarely strikes down a law, let alone a basic law or an amendment to a basic law. What are the chances in this case? Three primary arguments are being raised for nullifying the Unreasonableness Anendment.
The first argument is that the basic law jeopardizes Israel's democratic foundation. While the Supreme Court has never annulled a basic law based on this argument, some justices have previously suggested that a basic law contradicting Israel's Jewish and democratic foundations could be invalidated.
The second argument addresses the Knesset's abuse of its constitutional powers. The Knesset can enact both regular laws and constitutional basic laws with equal ease, leading to concerns that the term "basic law" could be exploited to shield laws from judicial review. Therefore, the Supreme Court maintains that a basic law should address foundational abstract issues and not serve as a tool for ad-hoc political maneuvering.
The abolishment of the Reasonableness Doctrine was partly driven by the coalition’s intent to reappoint ultra-Orthodox Shas party chairman Aryeh Deri as a minister, despite the court's earlier ruling that it would be exceedingly unreasonable to appoint someone previously convicted on three separate corruption charges.
The third argument revolves around the legislative procedure. Even the Supreme Court's conservative justices agree that lawmaking requires a thorough process of informed deliberation. However, in this case, the process was rushed and flawed, and crucial information about the national defense implications of the legislation was not made available to the Knesset members.
None of these arguments alone would suffice to reject a basic law. However, the Supreme Court might take action considering the unusual accumulation of issues. This could involve rejecting the law, limiting the law's application, or returning it to the Knesset for proper re-legislation. The last two outcomes appear more probable than the first.
The Coup Persists
Regardless of the verdict, it's clear that Netanyahu's coalition is determined to advance the rest of the anti-democratic legislation in the Knesset's upcoming winter session, starting mid-October. Despite Netanyahu's assurance that any action will only be taken with widespread consensus, his aides have hinted in interviews that the legislative focus in October will be to gain control of the judicial appointments committee, irrespective of the opposition's consent.
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.