Irreversible damage?

Israelis opposing Prime Minister Benjamin Netanyahu’s judicial overhaul have taken their fight from the streets to the Supreme Court, pleading it to strike down the divisive law enacted this week by the Parliament to curb the oversight powers of the courts.

The new legislation, known as the “reasonableness bill”, was pushed through ignoring months of civil unrest, international condemnations and appeals from business and security leaders to seek consensus in a deeply divided society. The bill was enacted as an amendment to one of Israel’s Basic laws that make up the country’s constitutional framework. Notably, Israel does not have a written constitution.

With the opposition boycotting the decisive vote in protest, the government approved the legislation that amends the Basic Law on the judiciary by eliminating what is known as the “reasonableness standard.”

The move reflected the determination of the 73-year-old Prime Minister and his far-right allies to move ahead with the plan, which has tested the delicate social ties that bind the country, rattled the cohesion of its powerful army and repeatedly drawn concern from its closest ally, the United States.

The overhaul calls for sweeping changes aimed at curbing the powers of the judiciary, from limiting the Supreme Court’s ability to challenging parliamentary decisions and changing the way judges are selected. Netanyahu and his allies say the changes are needed to curb the powers of unelected judges.

Opponents of the law and protesters hailing from a large part of Israeli society see the move mainly fuelled by political and personal grievances of Netanyahu, who is facing trial for corruption charges along with his partners. Netanyahu has consistently denied any wrongdoings.

By voting in favour of the law, the lawmakers approved a measure that prevents judges from striking down government’s decisions on the basis that they are “unreasonable.”

Under Israeli law, “reasonableness” refers to a balance between political and public interests in decision making. An “unreasonable” decision is one that “disproportionately focuses on political interests without sufficient consideration for public trust and its protection.”

The previous law offered the public a way of challenging government’s decisions that are not in its best interests. The amended legislation eliminates the High Court of Justice’s power to block certain government decision that it finds unreasonable.

At least three civil society organisations have filed a petition in the Supreme Court asking it to nullify the new law on the ground that it is in conflict with the country’s Basic Laws. Opposition leader Yair Lapid has also said that he would file a petition in the coming days.

In Israel, the Supreme Court and High Court are the same body of 12 justices, but there is an important distinction. While the Supreme Court hears appeals, the High Court hears petitions. The High Court acts on civil liberty violations and conducts judicial supervision of administrative action on bodies like the government, local authorities and government agencies.

The amendment is part of a broader judicial changes the government announced soon after assuming power in January, which it says are needed to push back against what it describes as overreach by Supreme Court which, in its view, has become too politically interventionist.

Justice minister had introduced a package of Knesset bills giving the ruling parties more power to override Supreme Court’s decisions and select judges.

The package included a legislation that would stop the Supreme Court from blocking politicians convicted of crimes from serving in top government jobs under the judicial standard of “reasonableness.” This authority has been stripped from the court by this vote.

Critics say the changes will open the door to abuses of power by removing effective checks on the executive’s authority.

The crisis has caused a deep divide in Israeli society, and has seeped into the military, with protest leaders claiming that thousands of volunteer reservists would not report for duty if the government went ahead with the plans, and former top brass warning that Israel’s war-readiness could be at risk.

Netanyahu, in his bid to calm down the protesters and critics, assured the country that “the courts will continue to be independent and no side will take it over.” He also said he was open to compromise other parts of the judicial overhaul.

Israel does not have a written constitution and the courts have used the reasonableness doctrine to block certain decisions and appointments. Earlier this year, the court forced Netanyahu to sack a key political all ultra-orthodox party leader Aryeh Deri from his twin appointments as health and interior minister, as he was convicted for tax fraud in 2021. This infuriated the conservatives.

Conservatives have described the change as crucial to reining in a judiciary that has “usurped” parliamentary authority and is “biased” toward Israel’s leftist elite. Critics say it is a power grab that would have an adverse impact on the long-standing balance of power between the legislative and judicial branches.

The new law is not irreversible, but the path ahead for its opponents is uncertain. Israel has never faced this kind of challenge from the government in the past.

One option is reversing the Knesset’s decision. But this is possible only after the ruling coalition is unseated in the next general election, and the new dispensation changes the law with a simple majority vote. However, the next election is not due until 2026.

The only immediate solution is that the court nullifies it by declaring it being in conflict with the country’s Basic Laws, which are essentially a “working draft” for a future constitution. Until now, the court has never invalidated any Basic Law. Only “regular laws” that violate Basic Law have been disqualified. Hence, striking down the legislation would be an unprecedented step.

According to Israel’s leading English daily, Haaretz, Constitutional law experts point to the existence of legal arguments for making such a ruling. In recent years, the Supreme Court (which also sits as the High Court) has established criteria that can be used in exceptional cases to cancel a Basic Law.

The first criteria is that if the top court determines that the Knesset has abused its authority by enacting a law that is defined as a Basic Law but represents action that is not considered a “constitutional norm.”

The second would be the passage of what is known as an “unconstitutional constitutional amendment.” Using these criteria, petitioners against the elimination of the reasonableness clause could argue that the new amended law violates the principle of separation of powers, which negates the democratic character of Israel and is, therefore, unconstitutional.

Hebrew University professor Yoav Dotan told the daily that it would be difficult to envision how a law eliminating the reasonableness clause, as bad and harmful as it may be, would meet the very high bar that justifies the court’s intervention and cause it, in an unprecedented move, to invalidate a Basic law.

Amir Fuchs, a senior researcher at the Israel Democracy Institute, “believes and hopes” that the court will reject the law “due to its violation of a combination of three critical principles, which sit at the core of Israel’s democratic identity and are harmed by the cancellation of the reasonableness clause: violation of the principle of separation of powers, violation of the rule of law, and violation of the purity of elections.

The writer is a former Editor of PTI and served as the West Asia correspondent. Views expressed are personal