If Israel’s Supreme Court, sitting as the High Court of Justice, strikes down the “reasonableness law” that the Knesset enacted on Monday it would create an unprecedented constitutional crisis, legal experts tell JNS.
Several Supreme Court justices visiting Germany, including Court President Esther Hayut, cut their trip short and are returning to Jerusalem to study petitions opposition groups filed against the amendment to Basic Law: The Judiciary.
“The court has recognized Basic Laws as constitutional, even those passed without a broad consensus. If it strikes down a Basic Law, especially one dealing with its own jurisdiction, it means the court doesn’t get to just interpret the constitution, but also to decide what goes in it,” Professor Eugene Kontorovich, director of international law at the Kohelet Policy Forum, told JNS.
On Monday afternoon, all 64 members of Prime Minister Benjamin Netanyahu’s governing coalition voted in favor of the key judicial reform legislation. Opposition lawmakers boycotted the third and final vote.
Opposition leader Yair Lapid said he would petition the High Court on Tuesday. The Movement for Quality Government in Israel, a leading group in the protests against judicial reform, said it has already requested an injunction from the court.
Kontorovich said that striking down the law would give the court “absolute power of a kind unknown in Western democracies and trigger a fundamental constitutional crisis.”
Avi Bell, a professor of law at Bar-Ilan University in Ramat Gan and the University of San Diego, told JNS that Israel is already in the middle of a constitutional crisis because the court has acted without legal restraint.
He said any attempt to invalidate the “reasonableness law” would be illegitimate.
“There is no power that the court has in law to strike down an amendment to a Basic Law. There is no statutory basis for the court doing so,” Bell said.
“However, the court has invented such a power outside the law. It said that it can strike down laws because it doesn’t like the procedure by which they were adopted and it has said that it can strike down laws that it feels have a political purpose. It has said that it can strike down laws because it feels that they are contrary to invisible and unarticulated principles that they [the judges] identify as the core of the Israeli system,” the professor continued.
“In other words, the court has given itself an unlimited extra-legal power to strike down laws which it could use here.”
The amendment to Basic Law: The Judiciary bars “reasonableness” as a justification for judges to reverse decisions made by the Cabinet, ministers and “other elected officials as set by law.”
Aeyal Gross, a professor of international and constitutional law at Tel Aviv University, told JNS that while in his view the petitions have merit, the court could decide to wait for a specific case involving the new law instead of deciding to strike it down right away.
This would involve the use of the “ripeness” doctrine that the law is too new to make a decision on its constitutionality.
“And even then when specific cases come the court may use other administrative law doctrines such as good faith, fairness, etc., rather than say this law prevents judicial review,” Gross added.
However, if the court does decide to strike down the law, the onus is on the government, Gross said.
“If the government respects [the court’s decision] it will just go out of the law books. Of course, they may try to re-legislate another version. If the government does not respect this—which I hope would not happen— this would lead to a constitutional crisis,” Gross said.
For Kontorovich, from the Jerusalem think tank that has argued for the need for reform, the “correct and democratic approach” to reversing the “reasonableness law” is for the next government to repeal it with enough votes in the Knesset, something that National Unity Party leader Benny Gantz indicated would happen.
Should the court strike down the law, it would mark the first time that the judicial branch has invalidated an amendment to one of Israel’s Basic Laws, which act as a sort of de facto constitution in the absence of such a document.
“The question on everyone’s mind is if the coalition government would respect that kind of ruling by the Supreme Court. It is difficult to say—we have never been in that kind of extreme situation where the coalition does not respect a ruling by the Supreme Court on such a major constitutional issue,” said Guy Lurie, a research fellow at the Israel Democracy Institute.
“If that will be the case then we will be in what is called a constitutional crisis, a disagreement as to the powers of whom to obey, and I very much hope that it will not come to such a crisis,” he said.