Benyamin Moalem

The Supreme Unreasonableness of Reviewing Basic Laws

On Tuesday, the Supreme Court will hear a petition challenging the legality of the Reasonableness Law which prevents the Court from reviewing government and ministerial decisions it deems “extremely unreasonable.” Given the law’s status as a quasi-constitutional Basic Law, the first question presented to the Court in this matter is whether the Court has jurisdiction over Basic Laws, and if so, under what legal theory?

In its landmark 1995 decision in United Mizrahi Bank v. Migdal Cooperative Village, the Supreme Court held that the Basic Laws have constitutional status and, therefore, regular laws that conflict with them must be invalidated. However, if the Basic Laws constitute a constitution, which the Court is empowered to protect, under what authority can the Court invalidate a Basic Law?

Legal analysts and previous Court opinions suggest two possible legal theories the petitioners could advance to convince the Court to invalidate the reasonableness law. The first is where the Court determines that the Knesset has misused its constituent authority. This would apply to laws that are deemed temporary or personal and, therefore, have no place in a constitution.  The second possibility is where the Court determines the law is an “unconstitutional constitutional amendment” because the law undermines Israel’s very essence as a Jewish and democratic state, in essence ruling that Israel’s character as a Jewish and democratic state is a sort of “super constitution,” despite the fact this idea has never been enacted as a Basic Law.  In this case, petitioners against the law contend that Israel’s character as a “democracy” is at stake.

However, under either theory, the court would be breaking its own rules limiting its power. Once it has determined that the Basic Laws have constitutional status and its power of judicial review stems from those very Basic Laws, what empowers the Court to invalidate them? In other words, by the logic of the Court’s own decision in United Mizrahi Bank, the very nature of the Basic Laws not only grants it the power of judicial review, but also limits its power to the confines of what is in the Basic Laws.

On the other hand, unlike in the United States, for example, where it is exceedingly difficult to amend the constitution, a bare Knesset majority is all that is needed to enact a Basic Law. In fact, many coalitions have changed the “rules of the game” so to speak, by amending Basic Laws governing government structure to conform them to their coalition agreements.

So, if the Court cannot overturn the Basic Law, this leaves us in a situation where any coalition can pass anything it wants without any judicial oversight simply by calling it a Basic Law. Conversely, if the Court can overturn a Basic Law, what are the limits of its power?

Despite the seeming catch-22 the various branches of government find themselves in, the answer should be clear: Regardless of one’s opinions on the substance of the Reasonableness Law, it is imperative that the rules of the game, as enshrined in the Basic Laws, be decided by the elected representatives of the people and not the Supreme Court.

Yes, the process for enacting Basic Laws is extremely problematic and must be addressed, but judicial intervention in a Basic Law would be judicial overreach of the highest order by a court already viewed by many in Israel as being too activist. What’s more, triggering its “nuclear option” by nullifying a Basic Law passed by a right wing and religious government will not help the Supreme Court’s image in the eyes of the Israelis who see the Court as a bastion of left-wing Ashkenazi secularism out of touch with many, if not most, Israelis.

Additionally, overturning a Basic Law, which the Supreme Court has recognized as Israel’s constitution, would be unprecedented for a western democracy.  If the Court’s power cannot be limited by a Basic Law, what serves as a check on its authority? A decision allowing it to also invalidate a Basic Law is essentially a statement that the Supreme Court is above the law.  In a resulting constitutional crisis, the Court will lose the moral high ground, unable to argue the coalition is acting in an undemocratic fashion. As much as the executive and legislative branches of government must understand the limits of their power, the Supreme Court must recognize its limits as well.

Leaders of the anti-judicial reform protest movement allege that the reforms will turn Israel into a “dictatorship,” and passionately urge the Court to overturn the Reasonableness Law. However, by this logic, a Supreme Court with no limits on its power would be a dictatorship of 15 unelected judges.  Should the Court determine it has the authority to invalidate Basic Laws, Israel would arguably be in a situation the protest movement claims it fears most.

Furthermore, even if Israel’s character as a “Jewish and Democratic State” is somehow a “super-constitutional” value by which one could argue the Court has the authority to invalidate Basic Laws, as Court President Esther Hayut has suggested, the very nature of the characterization of the State requires that it be defined by the electorate and not the Court. Looking around the western world there are many different definitions of what it means to be democratic, and no specific country can claim it has perfected the checks between the various branches of government or the balance between civil rights and the will of the majority.

Likewise, the Jewish world isn’t in agreement as to what it means to be “Jewish.” The decisions of what it means to be “democratic” and what it means to be “Jewish” must be left to the people, not to an unelected judiciary. The people must be the ones to decide the rules governing its government. If the people get it wrong, they’ll have themselves to blame and themselves to fix the problem.

Finally, while Israel conceivably needs an overhaul of its system of government to account for the many issues that are now coming to a head, seeing how difficult it is to get the sides to agree on anything, it will need to suffice with a badly needed Basic Law governing legislation. Such a Basic Law must be agreed upon by a consensus of lawmakers across the political spectrum, clearly delineate the rules governing the various branches of government and, most importantly, require a Knesset supermajority or approval by successive Knessets to enact or amend Basic Laws.  Politicians must place their own political interests and perhaps even compromise on their ideological values to reach such an agreement. If they don’t, Israel could be headed for a constitutional crisis or a situation in which personal rights are trampled by the will of the majority.

About the Author
The author worked as a foreign law clerk for the Deputy Chief Justice of the Supreme Court of Israel and now works as an attorney. He also curates balanced news coverage about Israel in his Instagram story at @bymoalem.
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