Israeli government and the Supreme Court at loggerheads
The first step toward the planned "judicial reform" in Israel was taken on 24 July with the adoption of an amendment to the "Basic Law: The Judiciary". The "reasonableness" criterion that Benjamin Netanyahu's right-wing religious regime did away with here was, contrary to how it is sometimes portrayed, not a "clause" and was never enshrined in any legal text. Instead, its application – which is limited to the actions of the government – has evolved from jurisprudence under British law, on which the Israeli legal system is based.
Something that has often been overlooked in recent discussions is that the amendment affects not only the Supreme Court but also all other courts in the country, as well as any other instance that possesses "judicial authority". They are now to be prohibited from ruling based on the reasonableness criterion on any "decision taken by the government, the prime minister or any other minister".
What is striking is that the amended text of the law mentions only "appointments" and the "decision not to exercise any power" as examples. In the view of Margit Cohn, a law professor at the Hebrew University in Jerusalem and an advocate of the reasonableness criterion, the government is in fact not primarily concerned with this veto instrument, which in any case was only used in extreme cases.
Cohn contends that the amendment is intended instead to prevent future interference with appointments such as that of the ultra-Orthodox Shas-party politician Aryeh Deri, who has a criminal record.
Deri's nomination as interior and health minister was overturned by the Supreme Court in January as "unreasonable" because his acceptance of the post violated the terms of a court settlement in a tax evasion case in which he was given probation in exchange for pledging to quit politics. Under the new law, it would become more difficult to prevent such questionable appointments.
Cohn argues in addition that the explicit reference in the amendment to the "decision not to exercise any power" has one primary purpose: to enable Justice Minister Yariv Levin to postpone further the long-overdue appointment of members to the Judicial Selection Committee until a planned law on changing its composition is passed; this would give the ruling coalition a decisive influence on the appointment of the judges.
She stresses, however, that this is just one component of a comprehensive legislative plan. Many people in the country share her concern that this plan would pave the way for a form of government somewhere between autocracy and theocracy.
Power shift to favour executive
Another question much discussed by the Israeli public, namely whether the successive disempowerment of the judiciary in Poland and Hungary is serving as a model for the Netanyahu government, scarcely contributes to a better understanding of the alarming events in Israel. Because the truth is that the role of the Supreme Court, the appointment of judges, and the reasonableness criterion have been subjects of debate there for decades.
Advocates of "judicial reform" brand the latter criterion as a superfluous restriction and insist that it is far from being the only instrument of judicial control – there are also the criteria of illegality, proportionality, lack of rationality, procedural impropriety, extraneous consideration, arbitrariness and discrimination.
Their argument that there can therefore be no question of an intended "restructuring of the state" – exactly what the mass protests in Israel have been warning of over the past months – cannot be dismissed out of hand.
After all, the recent amendment, limited as it is to administrative acts, does not concern the system of government per se. And in the long run, although it may be able to shift the balance of power between the executive and judicial branches in favour of the former, it can do nothing more.
Nevertheless, the attempt by the legislature to curtail the powers of the judiciary that controls it does in fact represent an unprecedented encroachment on the very fabric of the separation of powers, for, in the absence of a constitution or a second chamber of parliament, this is the one and only control mechanism in Israel's political system.
Government versus the Supreme Court
The Supreme Court must now take a stand on this breach of taboo in the course of several lawsuits that have been filed, and will thus be forced to defend its own status for the first time – that is, as long as it is still allowed to do so, because a bill already passed in its first reading in February would, if enacted, prohibit chief justices from nullifying basic laws, including any amendments.
As the new amendment is a legislative rather than administrative act, plaintiffs against it have significantly fewer arguments at their disposal than in the case of government actions.
The main potential grounds for complaint are violation of the rule of law of the Jewish and democratic state of Israel (unconstitutionality), abuse of power by the legislature, or inconsistencies in the legislative process. The Supreme Court will consider the matter on 12 September, with all fifteen justices participating together for the first time.
That the court is indeed prepared in principle to take action against an amendment to the Basic Law has meanwhile been demonstrated in another case. In March, a paragraph was added to the "Basic Law: The Government" that limits the grounds for removing a prime minister from office to mental or other health reasons.
This change was likely a response to Attorney General Gali Baharav-Miara's exclusion of Prime Minister Netanyahu from involvement in judicial reform due to a possible conflict of interest in light of his own corruption trial. The new law now prevents him from being impeached if he violates this exclusion.
Plaintiffs against the amendment have argued that Netanyahu had his own personal interests in mind here. Their demands were met by the Supreme Court on 6 August on two counts when the court issued a preliminary injunction against implementation of the amendment and demanded that the state provide justification for why the law should go into effect immediately rather than with the next legislative session.
As a result, the feared conflict between the judiciary and the government now threatens to become an open battle, as the coalition parties instantly claimed that the chief justices were not authorised to make such a decision. The Supreme Court does not plan to rule on the impeachment case until the end of September. But at the latest after the hearing on the reasonableness criterion on 12 September, the world will know just how endangered Israel's democratic system really is.
© Qantara.de 2023
Translated from the German by Jennifer Taylor