Will Israel's Supreme Court rulings start a ‘constitutional crisis’ this summer?

The Israeli Supreme Court is quickly becoming the focus of Israel's judicial reform debate. Over the next two months that focus will increase.  

This is true not only because several of the proposed judicial reforms directly affect how the Supreme Court operates, such as the recently passed Reasonableness Standard Law, or even the very makeup of the court, such as the proposed changes to the Judicial Selection Committee, but also because the court will itself weigh in on some of the reforms.

On Sunday, Supreme Court President Esther Hayut announced that all 15 Supreme Court justices will sit in the High Court hearing regarding petitions against the Reasonableness Standard Law.

The court will also hear several other important cases over the summer.

By the end of this week, the Supreme Court, functioning as the High Court of Justice, will have heard petitions regarding alleged discrimination against LGBTQ adoption, and the Incapacitation Law, which prevents the Attorney-General from declaring a sitting prime minister to be unfit for office. Then, in September, the court will hold a hearing on the Reasonableness Standard Law. 

The Supreme Court refers to a majority of justices sitting to hear any legal issue brought before them. The High Court of Justice refers to a selection of Supreme Court justices ruling on the legality of laws or decisions made by State authorities. This includes Knesset laws, such as the Incapacitation Law or the Reasonableness Law, as well as decisions by government officials at any level. 

The High Court of Justice began hearing petitions against the Incapacitation Law on Thursday morning.

The law directly relates to the coalition’s goals, claiming that its opponents on the political left are attempting a legal coup d’état against the elected prime minister.

The Incapacitation Law, an amendment to Basic Law: The Government, states that a sitting prime minister may only be removed if medical conditions render him/her incapable of functioning properly. The amendment requires the prime minister to declare himself incapable, or if at least 75% of the government ministers vote for his incapacitation. If the prime minister refuses to step down, then he/she can be removed by a vote of 90 Knesset members.

According to the opposition, the law was passed to prevent Attorney-General Gali Baharav-Miara from declaring Prime Minister Benjamin Netanyahu unfit for office due to a perceived conflict of interest.

The Movement for Quality Government in Israel filed a petition with the Supreme Court demanding that Netanyahu be declared incapacitated regarding his involvement in the coalition’s judicial reforms.

Israeli Attorney General Baharav-Miara then sent a letter to Netanyahu ordering him to refrain from involvement in the judicial reforms, because of ongoing investigations and trial on corruption charges.

The former attorney general, Avichai Mandelblit, ordered the prosecution to indict Netanyahu on charges of breach of trust, accepting bribes and fraud. At that time, the High Court ruled that so long as he is not found guilty, Netanyahu is free to participate in politics under the presumption of innocence.

However, the Supreme Court has previously ruled that “a prime minister accused of crimes must refrain from actions giving rise to reasonable fear of a conflict of interest between personal interests relating to the proceedings and their role as premier.”

Netanyahu’s opponents argue this ruling prevents him from being involved in the judicial reforms. At first, Netanyahu complied with the AG's letter instructing him not to take part in the reforms.

However, because it appeared increasingly likely the coalition would push through the Override Clause –allowing a narrow Knesset majority of 61 to invalidate any court decision – Netanyahu announced that he was “entering the arena.”

“I want to tell you clearly – this will not happen,” Netanyahu declared. He also argued that his role as prime minister demanded that he involve himself to “ensure the basic rights of every Israeli citizen – Jews and non-Jews, secular and religious, women, the LGBTQ sector, everyone – without exception.”

Israeli media reported an official close to Netanyahu justifying the prime minister's decision to get involved in the political crisis.

“Every sane person understands that at this time of national crisis, the prime minister must act to try to establish a broad consensus, to prevent violence and to uphold law and order and the daily functioning of the state,” the source said.

The Supreme Court did not intervene at that time to declare Netanyahu’s decision “extremely unreasonable”, based on the Reasonableness Standard, as some of his opponents expected.

Meanwhile, sources close to Baharav-Miara say she is not in favor of declaring Netanyahu “unfit” simply because he decided to become involved in the judicial reforms.

However, in July, the attorney general herself filed a petition with the High Court of Justice to strike down the Incapacitation Law passed in March, reportedly because she believes the law, as written, was tailored to Netanyahu’s situation, requiring too great of a Knesset majority to incapacitate a prime minister in the event of actual medical incapacitation.

In her letter to the High Court, Baharav-Miara argued that the law should be struck down based on the doctrine of “abuse of constituent power.” This doctrine says the High Court can strike down a Basic Law if the justices believe the purpose of the legislation is in the short-term interest of a government member.

Writing to the court, Baharav-Miara stated: “The personal purpose” of the law “led to the design of a governmental arrangement from a narrow and specific point of view in order to obtain a specific goal that has short-term benefit for a current elected official.”

“The Knesset abused its constituent authority, through an accelerated legislative process, in order to improve the prime minister's personal legal situation and enable him to act contrary to the court ruling, which approved his term under indictment for serious offenses,” her statement read.

Netanyahu announced his decision to become involved in the judicial reforms hours after the Incapacitation Law was passed.

Baharav-Miara's petition to the High Court of Justice marks the first time an attorney general has sanctioned the striking of a Basic Law amendment.

The High Court of Justice hearing on the petitions against the Incapacitation Law will be held on Thursday at 10:30 a.m.

Some analysts in Israel have opined that the High Court will probably not strike down the Incapacitation Law since the court did not expand the panel of justices in the hearing. Others, however, believe the High Court of Justice and the attorney general are laying the groundwork for a petition. That petition would call to cancel a Basic Law ahead of hearing the petitions to cancel the Reasonableness Law, scheduled to take place on Sept. 13.

That hearing marks the first time all 15 Supreme Court justices will convene in a panel to discuss a Basic Law amendment. 

Several NGOs, including the Movement for Quality Government, filed petitions regarding the Reasonableness Standard Law. The Yesh Atid political party, headed by opposition leader Yair Lapid, also filed a petition against the law.

Either hearing could lead to a so-called constitutional crisis if the court strikes down an amendment, pitting the Supreme Court against the Knesset, or Israeli parliament. 

The Likud party issued a statement on Monday referring to the unique situation. 

“Israeli governments have always been careful to respect the law and rulings of the court, and the court has always been careful to respect basic laws. These two elements form the basis of the rule of law in Israel and the balance between the authorities in any democracy. Any deviation from one of these principles will cause serious harm to Israeli democracy, which these days needs calmness, dialogue and responsibility.” 

As we have noted before, Israel has no written constitution. The Supreme Court has accepted the Basic Laws as a quasi-constitution.

Groups and individuals on both sides of the judicial reform debate have called for the government to tackle the issue of a written constitution. Both sides also agree that part of the intent of the coalition’s judicial reforms is to determine some of the constitution's shaping by amending the Basic Laws, which would serve as the framework for such a document.

“When justice is done, it is a joy to the righteous but terror to evildoers.” Proverbs 21:15 

“Partiality in judging is not good. Whoever says to the wicked, “You are in the right,” will be cursed by peoples, abhorred by nations, but those who rebuke the wicked will have delight, and a good blessing will come upon them.” Proverbs 24:23-25 

“But let justice roll down like waters, and righteousness like an ever-flowing stream.” Amos 5:24