Monday night’s landmark ruling by the High Court of Justice striking down the government’s reasonableness limitation law will go down in history not for annulling that problematic legislation, dramatic as that decision is, but for upholding by a huge majority the principle that Israel’s democracy is inviolable.
After the biggest showdown between the government and the judiciary in this country’s history, the justices of the court declared emphatically that the Knesset is not all-powerful, that the legislature and government must be subject to external restraints, and that narrow political majorities cannot threaten the rights of the individual and minorities.
Not only did the court say this in a clear and clarion voice, it did so with a diverse array of ideologies, as justices from the very liberal end of the spectrum through to staunch conservatives insisted that popular passions reflected in frequently volatile and fleeting governing coalitions must be subject to judicial review, even when dealing with Israel’s very constitutional makeup.
- This is the first time the High Court has ever struck down any aspect of one of Israel’s quasi-constitutional Basic Laws, and it did so in the teeth of the government’s contention that it has no authority to interfere with the country’s constitutional arrangements.
Superficially, Monday’s decision appeared to be a narrow victory for a deeply divided court, with just eight liberal justices ruling to strike down July’s reasonableness limitation law, and seven conservative justices arguing against such a dramatic step.
Since two of the eight justices in the majority have already retired – Esther Hayut and Anat Baron, who were issuing their decisions in the legally mandated three-month period after a justice retires – it would seem that on the very day the ruling was handed down the new composition of the court already does not back the decision.
- But that reality belies the more fundamental nature of the reasonableness ruling, in which fully 13 of all 15 High Court justices wrote that, contrary to the claims of the government and its most radical members, the court does have the authority to strike down Israel’s Basic Laws in certain, limited circumstances.
This is because five of the seven justices of the minority who ruled not to strike down the reasonableness law nevertheless were of the opinion that the Knesset’s ability to formulate and amend Israel’s Basic Laws does not give it a free pass to change, annul or even twist those constitutional arrangements in whatever manner it sees fit.
Twelve of the justices backed in some form former Supreme Court president Hayut’s doctrine that the Knesset, powerful as it might be, cannot, through passing or amending a Basic Law, alter Israel’s fundamental character as a Jewish and a democratic state.
- And Justice Yosef Elron wrote that the Knesset was not entitled to do harm to fundamental, individual rights, in essence also upholding the key tenets of Israel’s democracy.
Even without the voices of Hayut and Baron, there is still a massive 11 to 2 majority on the current court as it stands today in favor of limiting the Knesset’s power to change the very nature of Israel’s democratic character.
Against the background of the titanic struggle between the government and the judiciary over these precise issues witnessed during the first nine months of 2023, the ruling represents a huge victory for those voices arguing that the government’s radical judicial overhaul program was a dangerous initiative that needed to be reined in.
The initial package of legislation, unveiled a year ago — just days after the Benjamin Netanyahu-led coalition took office — represented a ferocious assault against the judiciary, many scholars argued, the passage of which would have done mortal damage to the liberal democratic underpinnings of Israel’s democracy.
Laws to give almost total control over judicial appointments to the government, and to all but annul judicial review over Knesset legislation, were on the cusp of being passed into law, and were only thwarted by the severe civil unrest and mass protests that arose in opposition to the government.
Even the architect of those laws, Justice Minister Yariv Levin, acknowledged at one point that the judicial appointments bill would have essentially destroyed Israel’s separation of powers.
The implication and legacy of Monday night’s ruling is that Israeli democracy is not dependent upon the motivation of concerned citizens alone, or the caprices of those in power, but that there is an emergency backstop in the form of the High Court which will not let the executive and legislature ride roughshod so easily over the basic democratic principles of the country.
On the issue of the reasonableness limitation law itself, the whisper-thin eight to seven majority is far less emphatic, especially in light of the retirement of Hayut and Baron.
Indeed, if the government were to re-legislate the same law tomorrow, there would be a majority to uphold the measure, a reality which may in the future tarnish the legitimacy of the court’s use of the doomsday weapon of striking down this particular Basic Law amendment.
Other options did exist, including sending the legislation back to the Knesset to moderate its sweeping, total abolition of the reasonableness standard, or reading a narrower interpretation into the law to limit its scope, as three of the conservative justices urged.
Such an outcome would still have asserted the court’s authority to conduct judicial review over Basic Laws, albeit in less dramatic fashion, while possibly garnering a greater majority for limiting the fallout of the reasonableness law.
Be that as it may, the High Court’s decision has laid down a clear marker to the current government and for posterity: It will not stand silently by while a narrow political majority seeks to reshape the fundamental nature of Israel’s democratic values, as other courts in other countries have done in recent years.
From Esther Hayut and her acting successor Uzi Vogelman among the liberals, to Alex Stein and Yael Wilner among the conservatives, the High Court has faced down the government in the country’s biggest-ever constitutional crisis, and declared, ‘There is a limit to the power of the majority.’”
Source: TOI