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High Court-Knesset showdown as justices put Basic Law in crosshairs

“Until now, the court never said, 'We have the power to reverse Basic Laws,' and that is what we may see here.”

Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
David Isaac
David Isaac

Israel’s High Court of Justice will hear petitions on Tuesday calling for it to strike down an amendment to a Basic Law. The court has held hearings on Basic Laws before. What’s different this time is that it may act to reject one.

“Until now, the court never said, ‘We have the power to reverse Basic Laws,’ and that is what we may see here,” Aharon Garber, deputy head of the legal department at the Kohelet Policy Forum, told JNS.

In 2021, the Supreme Court weighed in on two Basic Laws: the Nation-State Law and a law establishing an ‘alternate prime minister,’ a move enabling Likud leader Benjamin Netanyahu and Blue and White Party’s Benny Gantz to form a government. The court didn’t interfere with those laws.

On Tuesday, the court reviews the “reasonableness law,” which the Knesset passed in late July as an amendment to Basic Law: The Judiciary, thinking that would make it immune to court interference.

Basic Laws are thought of as quasi-constitutional, meaning they have greater weight than regular laws. The court treats Basic Laws as a constitution giving it the power to strike down Knesset legislation.

Some observers have warned of a “constitutional crisis.” Several Knesset members have called for ignoring the court.

“We’re still far from that scenario,” Garber said, noting that even if the court strikes down the “reasonableness law,” it won’t spark an immediate crisis. The government would need to make decisions that the attorney general then declared to be “unreasonable.” If the government ignored that declaration, at that point there would be a crisis, he explained.

Dr. Guy Lurie, a research fellow at the Israel Democracy Institute, who opposes the “reasonableness law,” agreed.

“We will find ourselves in a constitutional crisis once there’s an actual act or decision of the government that disregards the court’s ruling,” he said.

Neither Lurie nor Garber could predict what the court would decide. Lurie said the fact that the court is convening its full panel of 15 judges shows that it’s taking the case seriously. It’s the first time it has convened a panel of 15 in 50 years, he said.

Judge Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology, dismissed the 15-judge panel as mere “show,” a bid for legitimacy.

Of the five most important decisions by the Supreme Court in Israel’s history, none had 15 justices hearing the cases, he said. Three judges sat on the first important judgment in 1948, and it was decided by only two of them. The third was stuck in Tel Aviv because of the War of Independence and couldn’t make it to Jerusalem.

“What this fight is actually about is who is the sovereign: the Supreme Court or the Knesset. I believe, and I think most jurists believe, that the Supreme Court is not the sovereign. The Knesset represents the people. And the people is the sovereign,” Fainstein told JNS.

The government argued just this in its response defending its law to the court: “The Government of Israel contends that the State of Israel being a democracy, the source and authority of all government agencies is the sovereign—meaning the people—the citizens of Israel.”

Fainstein predicted that the court will come to a decision after a few months’ deliberation. It will conclude that it does have the authority to cancel laws under the “reasonableness” doctrine—”It won’t waive that ‘right.’ But it will announce that it’s not applicable in this specific case.”

He said the court is creating precedent. The court has granted itself the power to overturn laws and now it’s building a case for overturning Basic Laws. “On what do they base their precedent? On ‘we’ve said so,’” Fainstein said. The logic is circular. “In Latin they call it circulus vitiosus—vicious circle.

“Justices don’t have jurisdiction, none whatsoever, to cancel any law,” he added. Nowhere in Basic Law: The Judiciary is the court given power to reverse Knesset legislation, Fainstein said.

Lurie disagreed, saying the two Basic Laws, Human Dignity and Liberty, and Freedom of Occupation, passed in the 1990s, “cannot be understood except as mandating that the court has the power to annul Knesset legislation because of their stipulation that a regular statute cannot infringe on the rights entrenched in those Basic Laws.”

Fainstein called this line of reasoning “deduction.”

“What the court has done is deduce that it has those powers, but as U.S. Supreme Court Justice Felix Frankfurter said, ‘I have only three ways to interpret the law: Read the statute. Read the statute. Read the statute.’ That’s the basic dispute. Don’t come up with all kinds of ideas and interpretations. Stick to the letter of the law.”

The court and the Knesset are playing a game. They will go back and forth, with the court canceling laws and the Knesset re-enacting them, and it will continue until the court realizes it’s made a mistake, Fainstein said. “If the court doesn’t realize it, we are going to find ourselves in a real crisis between the judiciary and the Knesset.”

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