As protesters continue to take to the streets across Israel condemning a bill passed on Monday by the right-wing government to curb the country’s judiciary powers, Israel’s Supreme Court faces a momentous decision: how to respond to a challenge to its own power?
The new law limits the grounds the court can use to overturn government decisions. But once it was passed, petitions urged judges to do just that, by voiding the law itself.
Analysts said the court has three main options: 1) overturn the law; 2) interpret it narrowly to limit its impact; or 3) simply failing to make a decision by refusing to listen to any of the petitions.
The bill was passed by the Knesset, Israel’s parliament, as part of a broader plan by Prime Minister Benjamin Netanyahu’s government to reform the judiciary by taking control of judge selection and removing the courts’ power to review certain cases.
The protesters say the bill and broader plan are an attack on democracy, as the courts are the primary control over the Knesset and prime minister in Israel’s parliamentary system. Mr Netanyahu and his allies defend the law as a safeguard of democracy, a necessary means of preventing judges from interfering with the decisions of elected lawmakers.
Every decision by the court – including a refusal to hear a challenge to the new law – is having an impact on the waves of protests and counter-protesting by the law’s supporters that are sweeping the country.
“If the court dismisses the petitions, it could weaken protests” against judicial reform, said Adam Shinar, a law professor at Reichman University in Herzliya, Israel. “But if the court goes against the government, it will anger its critics. So there are all these strategic political considerations.”
Law and politics inevitably clash when a supreme court faces a serious challenge to its own authority, other analysts said.
“In these potentially revolutionary moments, it’s really unclear what courts should do,” said Kim Lane Scheppele, a sociologist at Princeton University. “There are two theories. One is that the court should crack down on the government. However, this may serve to confirm the impression that the court is out of control. So the other theory is that the court should be careful and stick to the law to show that the criticism is excessive. And then maybe that will cause the government to back down.”
But in Israel, judges have never faced such a challenge from the government.
Monday’s draft law 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 fundamental laws, which the judges had never before repealed.
Israel was founded in 1948 without a constitution. Ten years later the Knesset began with the passing of the so-called Basic Laws, first to set out the powers of the governing bodies of the country. Originally, basic laws that can be passed with a simple parliamentary majority were not necessarily superior to 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 jurists, proclaimed a “constitutional revolution” and the court established the supremacy of the Basic Laws and gave judges more leverage in interpreting them.
Since then, the court has identified ways to repeal a constitution without actually doing so, legal experts said. “For example, the court said it could overrule a constitution if it compromised Israel’s core character as a Jewish and democratic state,” said Professor Shinar of Reichman University.
If judges don’t want to repeal a statute now, they could narrow the limit of the reasonableness standard by using another standard they have developed — for example, that of “proportionality,” or assessing the match between a law’s means and ends and its costs and benefits.
“Proportionality is a balancing test,” said Rivka Weill, another law professor at Reichman University. She added: “It’s not as if the government has stripped judicial review of all powers.”
The current petitions before the court challenge the law in abstract terms, and so the judges could decline to hear these cases and wait for a specific case to be accepted for consideration. Such a case could come if, as Mr Netanyahu’s critics fear, the government seeks to replace Attorney General Gali Baharav-Miara, who is overseeing prosecutions of the prime minister in an ongoing corruption case.
Mr Netanyahu has denied any plan to disrupt his trial. But if the government removed Ms Baharav-Miara, she would “cross a red line for the court,” Professor Weill said. This also applies to the passage of the planned bill that would give the government control over how judges are selected, she added.
“The court will not back down on the independence of the judiciary,” she said. In either scenario, the court would have an illustrative set of facts to consider removing the adequacy standard, which would be its usual tool for reviewing the dismissal of a government official or a change in Israel’s system of mutual separation of powers.
Earlier this year, the court angered its critics by finding it inappropriate for Mr Netanyahu to appoint Aryeh Deri, a longtime ultra-Orthodox politician, to his cabinet because Mr Deri was recently convicted of tax fraud.
“It’s hard to explain in a non-technical way why what the Prime Minister has done here is unreasonable,” said Professor Scheppele, a Princeton-based sociologist. “The word itself seems obscure because of its common usage, although it is a clear and limited doctrine shared by other countries such as Britain. And you may be wondering: Why should the courts tell Netanyahu who to have in his government?”
In other countries, the courts would not control a head of government’s power to appoint the members of his cabinet. In the United States, for example, the Senate has the power to approve a President’s appointments.
But the comparison is not accurate, Professor Scheppele said. Israel lacks the controls and countermeasures of the American system. The country has neither two chambers of Congress that can block each other, nor a clear separation between executive and legislature, nor a federal system of states or provinces that retain significant powers.
The fragility of Israel’s separation of powers explains why so much is at stake for the independence of the judiciary in this controversy. This also means that the court can only take limited action to protect its own powers.
“You get to a point where the legal interpretation of the law is exhausted,” Professor Scheppele said. “A court cannot really fix what is wrong by interpreting a constitution” if the government continues to undermine the court or try to fill it with new judges. “When the fabric of democracy is threatened, you have to win an election and change the laws.”
