Elad Ben-Zaken

Catch 23 version of the constitutional crisis

Recently, Amit Segal published, based on the draft judgments regarding the reasonableness issue, that for the first time, the Israeli Supreme Court, sitting as the High Court of Justice (Bagatz), is about to invalidate a Basic Law. This is an unprecedented case; a Basic Law has never been annulled in Israel. Moreover, the Supreme Court has never exercised judicial review over the content of Basic Laws. Here, especially during a time of war, the Supreme Court, in its capacity as Bagatz, is going to tear apart the nation and reopen a forgotten divide. All this just so that Esther Hayut can write an explosive final judgment, just as President Shmagar did in the Mizrahi Bank case. These judges, how they love themselves.

For those who are not familiar, here’s the situation: With the swearing-in of Israel’s 37th government, its members introduced a comprehensive reform of the judicial system. The reform included, among other things, several amendments to the Basic Laws. According to the government, the relationship between the legislative authority and the Supreme Court is unbalanced, and therefore, it is necessary to amend several Basic Laws to preserve Israeli democracy. On the other hand, a large number of opponents argued that the proposed reform is nothing less than a severe assault on Israeli democracy. Despite political pressure and criticism from the Attorney General, who claimed that the reform in its proposed form is undemocratic and therefore unconstitutional, Netanyahu’s government decided to proceed with the legislation, amending two key Basic Laws against which petitions were filed. One was an amendment to the Basic Law: The Government, regarding the impeachment of a sitting prime minister. The other was an amendment to the Basic Law: The Judiciary, concerning judicial review of the reasonableness of government decisions. There was a highly publicized debate in Bagatz against these amendments, for a simple reason—never before in the State of Israel have Basic Laws been nullified.

The opponents of that reform argue that it weakens the principle of separation of powers, gives too much power to the government and the Knesset, and could almost completely undermine liberal democracy, similarly to what has happened in Poland and Hungary. Unlike in Poland and Hungary, in Israel, there was extraordinary public opposition to the reform, and the constitutional discourse dominated most daily headlines. For example, Prime Minister Benjamin Netanyahu decided to postpone the legislation for several days due to the heavy public opposition. Moreover, Polish experts noted the differences between the situations in Israel and Poland, emphasizing that in Israel, unlike Poland, the public manages to be a mechanism that limits the power of the authorities from executing a governmental coup.

On October 7th, the State of Israel underwent a terrible massacre that led to a war and changed the public discourse and focus of attention. Israel stopped dealing with issues like the separation of powers and the nature of liberal democracy and shifted to dealing with survival issues related to the war. Some argue that even during the war, the current government continues to promote anti-democratic laws and decisions. A good example of this is the way weapon licenses were distributed, which were later revealed to be illegal. Returning to the draft judgment published by Amit Segal, according to the draft, the upcoming verdict is set to order the nullification of a Basic Law for the first time. This comes during a difficult war and as the State of Israel is still recovering from the internal conflict that occurred before October 7th. Moreover, the judgment is to be published during the war so that President Hayut and Judge Baron, who retired about three months ago, can issue their final judgment. According to the court’s law, a judge who retires or leaves the court is authorized to publish their last verdict no later than three months from the day of their departure. The peculiar thing in this case is that if Hayut and Baron do not write the judgment, there is a majority against the nullification. This may lead to the suspicion that Hayut and Baron are planning one of the most severe constitutional coups.

Justice Minister Yariv Levin has said regarding the judgment that there is a public expectation not to publish a controversial verdict during the war. The same Yariv Levin had previously stated that he would not accept the annulment of the legal reform laws by Bagatz. Putting cynicism aside, one can clearly understand what is happening here.  The Knesset is the only body that can change the wording of a law. Moreover, as the Justice Minister, Yariv Levin himself can declare a ‘special state of emergency,’ thereby halting the three-month countdown for issuing a retiring judge’s final verdict. Thus, Levin, unlike the judges, can prevent the publication of the verdict in these days.

So why doesn’t he? As I explained earlier, in the previous round, it was the public itself that ‘stopped’ the government from absolutely harming the separation of powers. It’s possible that if the government decides it does not adhere to Bagatz’s ruling this time, the public may no longer be able to allow itself to massively protest against it, and the same staunch public pressure applied so far will not be exerted. Another possibility is that Minister Levin simply wants the blame to fall on the court, justifying his next anti-democratic countermeasure that he foresees during the war, one that will be swallowed up among operational achievements or the important discourse on political issues. Finally, there is the possibility (quite naïve, in my opinion) that following the publication of the draft judgment along with a public outcry, President Hayut and Judge Baron will announce their waiver of their opinion for the national need not to publish such a significant verdict during a war. In such a case, according to the draft judgment, there is a majority against the annulment. It seems that while Yariv Levin is calling for the verdict to be published only after the war, the solution to not publishing the verdict these days lies with Levin himself. Yet, he himself is not interested in doing so.

This piece was co-authored by Ivgeni Slutki Avraham, 28, a law student and teaching assistant for a course on Israeli law sources, also teaching legal skills.

About the Author
Elad Ben-Zakan, 25, a law student, engages in diverse studies including complex topics on race, workplace equality, law, and society.
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