June 17, 2024

How Israel’s Supreme Court Could Respond to the Challenge to Its Power

As protesters continue to pour into the streets across Israel, denouncing a bill passed by the right-wing government on Monday to weaken the power of the country’s judges, Israel’s Supreme Court faces an important decision: How should it respond to a challenge to its own power?

The new law limits the reasoning the court can use to overturn government decisions. But as soon as it was passed, petitioners asked the judges to do just that, by nullifying the law itself.

Analysts said the court basically has three options: 1) remove the law; 2) interpret it narrowly to limit its impact; or 3) not to make a decision by refusing to hear any of the petitions.

The bill was passed by the Knesset, Israel’s Parliament, as part of a broad plan by Prime Minister Benjamin Netanyahu’s government to reform the judiciary by taking control of how judges are selected and ending the courts’ power to review certain cases.

Protesters say the bill, and the broader plan, is an attack on democracy, as the courts are the main check on the Knesset and the prime minister in Israel’s parliamentary system. Mr. Netanyahu and his allies defend the law as a safeguard for democracy, a necessary means of preventing judges from interfering with the decisions of elected lawmakers.

Any decision from the court – including a refusal to hear a challenge to the new law – has implications for the waves of protest, and counter-protest from supporters of the law, that engulf the country.

“If the court dismisses the petitions, that could deflate the protests” against judicial overhaul, said Adam Shinar, a law professor at Reichman University in Herzliya, Israel. “But if the court acts against the government, it will blame its critics. So you have these strategic political considerations.”

Law and politics inevitably collide when a high court faces a major challenge to its own authority, other analysts said.

“In these potentially revolutionary moments, it’s not clear what courts should do,” said Kim Lane Scheppele, a sociologist at Princeton University. “There are two theories. One is that the court should strike back hard against the government. But this could risk confirming the view that the court is out of control. So the other theory is that the court should be careful and follow the law to show that the criticism is exaggerated. And maybe that puts the government back.”

But in Israel the judges have never challenged the government like this one.

Monday’s bill says the court can no longer use the legal standard of “reasonableness” to overturn government decisions. It was enacted as an amendment to one of Israel’s Basic Laws, which had never been struck down by the judges before.

Israel was founded in 1948 without a constitution. Ten years later, the Knesset he began to go beyond what are known as the Basic Laws, first to set out the powers of the country’s governing bodies. First, Basic Laws, which can be passed by a simple parliamentary majority, were not necessarily better than other laws. Then in 1992, the Knesset passed a Basic Law that guaranteed dignity and freedom. Supreme Court Justice Aharon Barak, one of the country’s most influential judges, announced a “constitutional revolution,” and the court established the supremacy of the Basic Laws and gave judges more control over their interpretation.

Since then, the court has laid out paths to strike down the Constitution without actually doing so, legal experts said. “For example, the court said it could strike down a Basic Law if it violates the core nature of Israel as a Jewish and democratic state,” said Professor Shinar of Reichman University.

If the judges do not want to remove Basic Law now, they could narrowly interpret the limit on the standard of reasonableness by using another standard they have developed — for example, “proportionality,” or assessing the fit between the means and ends of a statute and its costs and benefits.

“Proportionality is a balanced test,” said Rivka Weill, another law professor at Reichman University. She added: “The government does not seem to have taken all the power of judicial review.”

The current petitions before the court challenge the law in summary, so the judges could refuse to hear those cases, and wait for a concrete case to be accepted for review. One such situation could arise if, as Mr. Netanyahu’s critics fear, the government tries to replace the attorney general, Gali Baharav-Miara, who is overseeing the prosecution of the prime minister in an ongoing corruption case.

Mr. Netanyahu denied any plan to interfere with his trial. But if the government removed Ms. Baharav-Miara, it would be a “red line for the court,” Professor Weill said. So the proposed bill would be passed to give the government control over how judges are selected, she said.

“The court will not rely on judicial independence,” she said. Either case would provide the court with a vivid set of facts to evaluate the end of the reasonableness standard, which would be its usual tool for reviewing the dismissal of government officials or a change in Israel’s system of checks and balances.

Earlier this year, the court angered its critics by saying it was unreasonable for Mr Netanyahu to appoint Aryeh Deri, a longtime ultra-Orthodox politician, to his cabinet because Mr Deri had recently been convicted of tax fraud.

“It’s hard to explain in a non-technical way why what the prime minister did here is unreasonable,” said Princeton sociologist Professor Scheppele. “The word itself seems to have been obscured from its common usage, although it is a clear and restrictive doctrine that is also used by other countries such as Britain. And you may ask, why should the courts tell Netanyahu whose government he can be?”

In other countries, a check on the chief executive’s power to appoint members of his cabinet would not come from the courts. In the United States, for example, the Senate has the power to confirm presidential appointments.

But the comparison is not appropriate, said Professor Scheppele. Israel lacks the checks and balances of the American system. The country does not have two houses of Congress that can block each other, or a clear separation between the executive and legislative branches, or a federal system of states or provinces that retain significant powers.

The fragile nature of Israel’s checks and balances explains why the stakes for judicial independence are so high in this controversy. It also means that the court can only do so much to preserve its own powers.

“You get to a point where judicial interpretation of the law disappears,” Professor Scheppele said. “A court cannot fix what is wrong by interpreting a Basic Law” if the government continues to undermine the court or try to pack it with new judges. “When the fabric of democracy is threatened, you have to win an election and change the laws.”

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