Constitutional crisis: Can High Court strike down reform bills? – analysis
The question of whether the court should be able to review Basic Law amendments has been a gap in Israel’s legal structure that reformists say they are attempting to fill.
Judicial reform supporters wave Likud flags and hold signs reading “The leftist minority will not determine Israel” and “Leftist traitors” at a protest on Saturday night, March 18, 2023. / (photo credit: ERIK MARMOR/FLASH90)
Concerns about an impending Israeli constitutional crisis surged on Tuesday as opposition members called for the High Court of Justice to strike down judicial reform laws – and coalition members debated whether they would accept the court’s decision.
Judicial reform negotiation attempts have all but failed with the complete rejection by the coalition of President Isaac Herzog’s “People’s Directive.” The opposition has little recourse against the reform after the coalition decided on Monday to proceed with a unilateral compromise on it – and the final Knesset readings on the amendment to the judge selection committee Basic Law are set to be held before the parliamentary Passover recess.
Opposition leaders have increasingly turned to the possibility that the High Court of Justice would engage in a judicial review of the judicial reform bills as a final hope. Former attorney-general Avichai Mandelblit expressed confidence on March 12 that the court would strike down the legislation; the next day, Yisrael Beytenu head Avigdor Liberman called on the court to cancel the bill.
Justice Minister Yariv Levin on the court’s decision
Justice Minister Yariv Levin said on Monday that he wouldn’t accept the High Court’s judicial review of the Basic Law amendment regarding the composition of the judge selection committee, which will see its final Knesset readings before the Passover break. Economy Minister Nir Barkat said that he would accept the court’s ruling, only out of concern that its rejection could lead to a constitutional crisis.
This is when the government comes into unresolvable conflict with the constitution, often in a way that falls between the gaps in the legal structure. While Israel lacks a formal written constitution, it does have the quasi-constitutional Basic Laws.
JUSTICE MINISTER Yariv Levin addresses the Knesset plenum last week, before voting took place in a first reading on judicial reform legislation. The government has remained inactive in clarifying the reform’s purpose, says the writer. (credit: YONATAN SINDEL/FLASH90)
Bar-Ilan University law professor Avi Bell said that there is no law that authorizes the court to strike down Basic Laws, or even regular legislation.
“When the court declared its ‘constitutional revolution’ in the mid-1990s, giving itself the power to cancel legislation, its justification included the claim that the Knesset acts as a constitutional assembly when it enacts Basic Laws and that Basic Laws are really a constitution, so the court is just enforcing the Knesset’s constitution when it strikes down non-Basic Laws,” explained Bell. “Obviously, this justification cannot possibly excuse a court decision to nullify Basic Laws.”
Given the powers that the court had granted itself, and the desire to protect those abilities, said Bell, it was possible that the court could determine that it could cancel Basic Laws.
Hebrew University law professor Yoav Dotan said that the ability to strike down a Basic Law was complicated, explaining that the idea of judicial review itself leans on the supremacy of the Basic Laws over regular legislation.
In comparison to other states, courts have in extreme cases reviewed constitution amendments, but this has been rare, said Dotan. Where Israel differs is the lack of a special method for creating its constitutional articles.
“It doesn’t differ from regular legislation by the Knesset,” he said, “so it’s very easy for the Knesset by regular political procedure to change them, which makes the option or the possibility of judicial intervention even more relevant.”
There is little precedent for review of Basic Laws, said Dotan. The High Court has intervened a few times on the technical level. When the Knesset attempted to temporarily amend the Basic Law addressing the budget, the court ruled that as a fundamental state article, such a thing wasn’t possible.
“So far, they haven’t gone all the way by saying that the Basic Law is undemocratic or something like that, to strike down a Basic Law,” Dotan said.
The grounding by which the court could make its ruling would be based on just this, the law professor said, claiming that the law must conform to principles of democracy, separation of powers, or the values of the Declaration of Independence. Ultimately, Dotan said much of this was speculative as it was such untrodden territory.
The question of whether the court should be able to review Basic Law amendments has been a gap in Israel’s legal structure that reformists say they are attempting to fill. Versions of the Judge Selection Committee bill have contained provisions to bar the court from interfering in Basic Laws.
“One of the central motivations for the proposed judicial reform is that the Court acts as if it is above the law in striking down legislation of the Knesset,” said Bell. “No law authorizes the court to strike down laws due to insufficient discussion in committee, for example, but the court has nevertheless done so.”
The Likud responded to the discourse on the looming crisis by saying that calls to strike down the law were a reason for the reform, and noted an emerging tradition in every reform outline from Herzog and Rothman to Friedmann, which had accepted that xourt review of Basic Laws should be disallowed.
“The Court’s overreach will be the constitutional crisis,” said Bell. “Obviously, there is a danger that matters will go downhill from there.”
If the court determined that it had the power to strike down Basic Laws, and the government refused to accept the decision, each branch would be mutually rejecting the legitimacy of the other. The court would not be accepting the constitutive authority of the Knesset, and the government would be rejecting the court as an interpreter and protector of the law. This could extend to all other legal and governance matters and relations between the judiciary and the legislative and executive branches, a scenario for which there is no precedent.
What would happen next is unclear, said Dotan.
“Nobody can make clear predictions here, because this is unstudied terrain, certainly for Israel”
The likelihood of the court striking down the judge selection amendment was quite high if the government continued with its current legislative path, Dotan estimated.
Bell said that the high probability was a political issue, not a legal one. He said that it depended on the individual justices, the expected backlash from the media, and whether the opposition would back its activism.
“I can only hope that members of the court’s anti-reformist camp will persuade the justices to take a less reckless course.”