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Dancing on the Edge of Democracy: 14 Dramatic Hours at the Supreme Court

A Coup in Review

September 15, 2023 (Eve of Rosh Hashana)


Supreme court sign over protesting crowd
SUPREME Court Sign at Tel Aviv Protest. Photo by Tally Melamed, Shatil Stock.

The 14-hour session of oral arguments before an unprecedented full panel of 15 Supreme Court justices highlighted the precarious state of Israeli democracy, which many feel is teetering on the brink.


On Tuesday, the justices listened intently to arguments for and against repealing the amendment to Basic Law: The Judiciary, which eliminates the standard of reasonableness for reviewing governmental decisions and appointments. Specifically, the amendment shields both the government and its ministers from judicial scrutiny, even when their actions are deemed unreasonable.


Chief Justice Esther Hayut emphasized that the Court receives thousands of petitions annually based on grounds of unreasonableness. While the Court intervenes in only about one percent of such cases, the removal of this legal standard would render citizens powerless against arbitrary ministerial decisions.


The debate centered on two pivotal questions. The first concerned whether the Supreme Court possesses the authority to invalidate a Basic Law, given that Basic Laws are part of Israel’s constitution-in-making. The second probed whether the amendment in question so fundamentally compromises Israel’s democratic values that it must be struck down.

From their comments and questions, it immediately became clear that the justices were divided. Nonetheless, a majority—at least nine, possibly more—appeared willing to affirm the Court’s authority to intervene when a Basic Law undermines the essence of Israel as both a Jewish and democratic state.


Many justices seemed persuaded that Israel’s Declaration of Independence serves as the foundational document granting constitutional authority. Initially bestowed upon the nation’s Temporary Council, these constitutional powers were later transferred to the Knesset. As such, the Knesset’s constitutional capabilities are limited by the declaration’s fundamental principles, which mandate that Israel must remain both Jewish and democratic.


On this matter, private attorney Ilan Bombach, representing the government, made a controversial and historically dubious assertion that the Court should not rely on the Declaration of Independence because it was “hastily drafted” by 37 “unelected individuals.”


In contrast, a representative for Attorney General Gali Baharav-Miara sided with the petitioners, urging the Court to recognize the dangerous anti-democratic implications of the amendment. He argued that it would effectively establish an undemocratic class of ministers, endowed with unchecked powers that are ripe for potential abuse and corruption.


Member of the Knesset (MK) Simcha Rothman surprisingly announced at the hearing that he himself will be representing the Knesset’s Constitutional Affairs Committee, which he chairs. In a confrontational moment that leaned more toward political rhetoric than legal argument, Rothman directly accused the assembled justices of operating as an “oligarchy” fixated solely on preserving their own authority and prestige. In a measured response, Chief Justice Hayut clarified that the Court’s primary mission is to safeguard the public interest, not to maintain its own institutional grandeur.


While a majority of the justices seemed to agree on their authority to review Basic Laws, there was less consensus on whether to repeal the reasonableness amendment. Some suggested that it could be narrowly interpreted to preserve some degree of judicial oversight, despite the amendment’s explicit language, which both the government and MK Rothman insisted was designed to eliminate such review.


The forthcoming decision from the Court stands to be a landmark ruling, one that will define the judiciary’s ability to review Basic Laws. If the Court asserts this power, it would constitute a momentous win for the democratic fabric of Israel. On the other hand, if the Court essentially provides the coalition with a “blank check” to legislate any Basic Law without judicial oversight, the consequences could be catastrophic. In such a scenario, the coalition could fast-track the entire judicial coup, all under the umbrella of a Basic Law, thereby making it immune to judicial scrutiny.


One of the petitioners poignantly reminded the Court of a historical cautionary tale: In 1933, Austria’s Constitutional Court refrained from exercising judicial review over legislation. Within a year, the democratic institutions that the Court had hesitated to protect no longer existed.


A ruling is expected within a month or more, with a deadline set for mid-January, after which Chief Justice Hayut, who is retiring in mid-October, will no longer be able to issue rulings. According to law, she can deliver judgments for only three months following her official retirement.


Meanwhile, the Supreme Court will remain occupied with other pressing cases. Immediately after the Rosh Hashanah holiday, the Court is scheduled to hear arguments concerning a petition to compel Minister of Justice Yariv Levin to convene the Judicial Appointments Committee. Levin has resisted, waiting for the coalition to pass legislation that would allow it to control judicial appointments. Levin’s confrontational stance exacerbates the already escalating tension between Israel’s judiciary and executive branches.


For the time being, Israel’s democracy remains hanging by a thread.


 

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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