Israel’s Supreme Court weighs law that limits its own power
By Patrick Kingsley
JERUSALEM — Israel’s Supreme Court convened Tuesday (12) to begin considering whether to strike down a deeply contentious law that limits the court’s own power, in a hearing that sets the stage for a constitutional showdown between the country’s judicial and executive branches.
In a sign of the gravity attached to the case, the court met with all 15 of its justices present for the first time ever, amid testy exchanges between judges and lawmakers about the nature of democracy, and angry outbursts from a right-wing lawmaker in the gallery.
The court heard an appeal against a law passed by parliament in July, which ruled that judges can no longer use the legal standard of “reasonableness” to overrule decisions made by government ministers. Critics have long said the standard is too vague but supporters of the court say it is a necessary curb on government overreach.
“This is a circus, a stitched-up show,” shouted Tally Gottliv, a lawmaker in the governing coalition led by Prime Minister Benjamin Netanyahu, the most nationalist and religiously conservative in Israel’s history, who had come to watch the hearing from the gallery.
Justices could take until January to make a decision, and legal experts said it was too early to predict what conclusion they would reach.
But from the judges’ questions and statements, it was clear that several members of the court had concerns about the law passed in July.
“The duty to act reasonably also applies to the government and its ministers,” said Chief Justice Esther Hayut. But if the court were barred from using the reasonableness standard, Hayut added, “Who ensures that they do indeed act reasonably?”
Some judges also appeared uncomfortable with the possibility that they might need to intervene.
Justice Noam Sohlberg, who has previously expressed concerns with the use of the reasonableness concept, asked: “What remedy will the public have if we, the court, if we rule in error?”
Regardless of the outcome, the case is considered one of the most consequential in Israel’s history. Israelis from all political backgrounds say the country’s future and character partly depend on the result of the hearing because it could determine the extent to which politicians will be subject to judicial oversight. Since Israel has no written constitution and no second chamber of parliament, the court is seen as an essential counterweight to the power of the Cabinet and the legislature.
The decision by Hayut to convene all 15 of the court’s judges to hear the appeal meant that new seats had to be added to the judges’ bench. Usually, between three and 11 judges sit for each case before the court.
Netanyahu’s government sees the court as an obstacle to its vision of a more conservative, nationalist society. The court has historically acted as a check on religious influence on public life, some Israeli activity in the occupied West Bank, and decisions that favour Jews over Arabs.
The opposition considers the court a guarantor of Israel’s secular character, a protector of its minorities, and a bulwark against authoritarianism.
At its core, this disagreement — and the hearing Tuesday — centred on differing understandings of democracy’s fundamental principles.
To the government, democracy is primarily about implementing the will of the majority, without interference from unelected judges. But to the government’s critics, the most important part of a democracy is the maintenance of judicial checks on executive power.
That argument was embodied in an exchange in court Tuesday between a judge and a coalition lawmaker.
Without judicial review, “What if parliament passes a law that said that elections should be held in 10 years?” asked Anat Baron, a judge on the court, during an exchange Tuesday.
What if the government decides “that Arabs have no right to vote, or that it is forbidden to drive on the Sabbath, including for secular people?” Baron added. “What then?”
Speaking in response, Simcha Rothman, a coalition lawmaker and an architect of the legislation, said it wasn’t the court’s place to overrule lawmakers chosen by the people. “If the elected parliament does not fulfil its role properly,” Rothman replied, “a remedy will not be found through the control of an oligarchic group of people — as wise, prudent and honest as they may be.”
The legislation passed in July was an attempt by the ruling coalition to weaken the court’s influence over the government. It barred the court from striking down government decisions on the grounds that they were “unreasonable.”
Coalition leaders said the concept — never defined in a statute — was too loose, and had in the past given unelected judges too much room to meddle in decisions by elected lawmakers, undermining the electorate’s choices. The coalition said the court still had several other tools with which it could restrain the government.
Nearly two months later, the court is hearing arguments from eight petitioners against the law, most of them civil society organizations that campaign for good governance, as well as representatives of the government and parliament.
The law’s opponents argue that the legislation undermines Israeli democracy by limiting the power of the Supreme Court, which is the main check on government overreach.
Eliad Shraga, who leads one of the groups petitioning against the law, said Tuesday that the law was a kind of “regime coup”.
The law is one part of a wider legislative package, the rest of which the government has failed to implement. The government still hopes to pass another law that would give it greater control over who gets to be a judge. But Netanyahu has ruled out pursuing a third plan that would have allowed parliament to overrule Supreme Court decisions.
The package has prompted what many see as the worst domestic political crisis in Israeli history, one that has widened long-standing rifts between secular and religious Israelis, as well as Jews of European and Middle Eastern descent.
Opponents of the law have held 36 consecutive weeks of mass protests. The judicial overhaul has also prompted some investors to divest from Israel, led more than 1,000 reserve soldiers to suspend their volunteer duty for the Israeli military, and strained Israel’s relationship with the United States government.
In another sign of the case’s importance, lawmakers, foreign diplomats and broadcasters began lining up outside the courtroom at least 90 minutes before the start of the hearing to secure a seat. Some took selfies once inside.
At times, there were lighthearted moments.
After Ilan Bombach, a lawyer representing the government, complained that the time allotted to his speech was “unreasonable,” Hayut responded with a joke.
“The word ‘reasonable’ is forbidden,” she said.
Justice Yitzhak Amit joked that while he was concerned by the law, he did not fear it would lead to redheads being barred from voting.
“I’m afraid,” interjected Shraga, from the group petitioning against the law, who is known for his red hair.
But more generally, those present appeared to be moved by the occasion.
“I am truly emotional to be standing here today,” Itzchak Barth, the legal adviser to the Israeli parliament, who was the first person called to give his opinion before the court.
“This is a historical day, a historical event,” Shraga said.
-New York Times