Ann Arbor (Informed Comment) – In the midst of Israel’s brutal total war on Palestinian civilians in Gaza and its apparent failure to attain its basic war goals, the country’s Supreme Court has issued a ruling sure to throw the country into an unprecedented constitutional crisis.
Members of the government criticized the court for issuing its ruling in the midst of the Israeli campaign against Gaza, while others feared that it would reignite deep divisions in Israeli society that had provoked regular, massive demonstrations in the first eight months of 2023.
The Israeli newspaper Arab 48 reports that the Supreme Court voted 8 to 7 to reaffirm its prerogative of judicial review based on the country’s Basic Laws enacted by parliament, giving the Court the authority to strike down the July 24, 2023, law passed by the extremist parliament. The latter had removed the Court’s ability to interfere in cabinet decisions and appointments on the basis of what is called “the reasonableness doctrine,” which is rooted in British common law.
Israel does not have a constitution but Parliament (the Knesset) has passed a series of Basic Laws, beginning in 1958, which have constitutional implications. This is especially true of of two important laws of the early 1990s, the 9th and 10th. The Center for Israel Education notes, “The Tenth Basic Law of Israel was passed by the Twelfth Knesset on March 17, 1992. It states that human rights are based on recognition of the value of man, the sanctity of life and the fact that he is free. Its aim is ‘to defend Human Dignity and Liberty, in order to establish the values of the State of Israel as a Jewish and democratic state.’ It defines human freedom in Israel as being the right to leave and enter the country, to privacy, intimacy, and refrainment from searches of private property, body, possessions, speech, writings, and notes. Violations of the dignity or freedom of man is permitted only in accordance with the law.'” The current extremists in power in Israel would like to roll back these liberties, and their attempt to gut the “reasonableness” doctrine was only the first step toward neutering the Supreme Court entirely.
About a year ago, as the extreme, fascist government of Prime Minister Binyamin Netanyahu was consolidating itself, the PM tried to appoint Aryeh Makhlouf Deri as Minister of Health and the Interior. Deri, the leader of the fundamentalist Shas Party, had had several run-ins in with the law and even gone to jail for corruption, and the court held he recently had made a deal to stay out of political office to avoid going to jail yet again, on which he and Netanyahu reneged. The Supreme Court intervened to strike down Deri’s appointment, invoking the reasonableness doctrine. The Supreme Court had also ruled against Israeli sovereignty in the Palestinian West Bank, castigating vigilante Israeli squatting there.
The law that the far-right Israeli Knesset passed on July 24 forbade the High Court of Justice from in any way appealing to the reasonability standard to check the power of the government, whether in making cabinet decisions or appointments.
Twelve of the 15 justices ruled that the Supreme Court has the prerogative to exercise judicial review based on the Basic Laws, including any parliamentary attempt to abrogate those laws, which form the basis of the future constitution of Israel. The Supreme Court plays this role, they said, to prevent “harm to the democratic values of the state.” The reaffirmation that the court could use the reasonableness doctrine to overrule cabinet decisions and appointments despite the new Knesset legislation, however, was only passed by a margin of one vote.
Monday’s Court decision noted that “judicial review (judicial oversight of the decisions of the legislative and executive branches) is the only effective brake on the great power concentrated in the hands of the government and its ministers.” It added that last July’s legislation curbing the court’s ability to abrogate cabinet decisions and appointments “exceeds the authority of the Knesset, and contradicts the principles of democracy, and undermines an essential part of the court’s role in defending the individual and the public interest.”
The majority decision observed, “As a result of the extreme and exceptional wording of the amendment, and given the existing constitutional situation, it causes unprecedented damage, by its scope, to the principle of the separation of powers.”
The legal issues are complicated inasmuch as the July legislation was itself considered a Basic Law, and this is the first time the Supreme Court has overruled such a Basic Law. It essentially pitted the previous Basic Laws against this one and found it incompatible with its predecessors.
Netanyahu’s Justice Minister, Yariv Levin, responded to the ruling by complaining that the “decision of the Supreme Court justices to publish the ruling during the war contradicts the ‘spirit of unity’ required these days for the success of our fighters at the front.”
He went on to reject the principle of judicial review, charging that the justices “have effectively monopolized for themselves all the prerogatives that are supposed to be divided in a balanced manner among the three Powers in democratic systems.”
Not only did Levin reject judicial review, a basic principle of democracy that has been increasingly embraced around the world since WW II, he went on to put forward a fascist principle that the masses should be able to subvert the rule of law, saying that a “situation in which it is impossible to enact a basic law or take any decision in the Knesset or in the government without the approval of the justices of the Supreme Court deprives millions of citizens of their voice and their basic right to be equal partners in the decision-making process.”
Actually, in a parliamentary system where the government only has 64 of 120 seats, for it to act in an unrestrained manner would disenfranchise nearly half the citizens, in what is known as a “tyranny of the majority,” of which James Madison was terrified. The Likud, rooted in the Central European far right thinking of the twentieth century interwar period, actively seeks a tyranny of the majority and so of course is annoyed by checks and balances such as judicial review.
The web page of the US Supreme Court contains this language: “Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.”
Thus, it is Levin who is being anti-democratic and favoring a violation of the rule of law.
Levin pledged to continue the battle “on various fronts” and said that the ruling “will not weaken us.”
The far right Likud Party and the fundamentalist Shas Party both basically repeated Levin’s talking points.
The convicted racist, and obviously fascist, minister of national security, Itamar Ben-Gvir of the Jewish Power bloc, erupted, saying, “The Supreme Court decided to weaken the morale of the fighters in Gaza and harm them first and foremost.” He continued, “The Supreme Court’s ruling is illegal, and includes an unprecedented cancellation of a basic law, in the absence of a source of constitutional powers, while the judges have a conflict of interest. This is a dangerous and undemocratic event – and at this time, the Supreme Court’s ruling is harmful to the war effort.”
Branding the court’s ruling “illegal” is a declaration of war by the executive and the parliamentary majority against the national judiciary, and presages dire internal conflict as soon as the artificial unity fostered by the Gaza campaign subsides.
Opposition leader Yair Lapid of the Yesh Atid Party wrapped himself in the patriotism of the Gaza campaign from the other direction in expressing approval of the Court decision. He said, “Today the Supreme Court faithfully stood up for its role in protecting the citizens of Israel, and we give it our full support.”
He continued, “If the Israeli government once again begins its struggle with the Supreme Court, then it will not have learned anything. They have not learned anything from October 7th. They have learned nothing from 87 days of war to defend the homeland.”