In a rare bit of good news from Israel, the country’s High Court of Justice has issued a landmark judgement reinforcing the separation of powers in the face of right-wing efforts to undermine constitutional democracy. The decision vindicates the million-plus protesters who took to the streets over the past year to protest Israeli Prime Minister Benjamin Netanyahu’s plans to strip the court of its powers of judicial review. More important, it champions the ideal of the rule of law at a moment when Israel is at war and the country’s conduct has been subject to withering international criticism.
The 8-7 decision, issued on New Year’s Day, is the most significant judgement in Israel’s history. It follows a year of intense controversy that has threatened to tear the country in two. If it were not for the Gaza war, the court’s announcement of its judgement, stretching to 783 pages in Hebrew, would have brought huge crowds to the streets in jubilation and possibly also those in opposition.
The background to the case lies in a series of judicial reform laws proposed by Netanyahu’s government beginning in January last year. The proposals sought to give the government more power in appointing justices and to limit the authority of the high court, which the Israeli right wing sees as thwarting its initiatives. Netanyahu himself is currently being tried for corruption and the court might ultimately have to decide whether he goes to prison.
The specific judicial reform law passed last year by Netanyahu’s government — now overturned by the court — stated that the justices could no longer overrule any actions by the government or its ministers on the basis of being “unreasonable.” Review for unreasonableness is a tool of judicial review derived from British administrative law and has been used for years by the high court.
Opponents saw the reform proposals as steps toward authoritarianism, akin to those taken by right-wing governments in Hungary and Poland. That is why the protesters took to the streets. To them, Israel’s democracy itself lay in the balance.
A bare majority of the justices agreed. The lead opinion was written by the retiring president of the court, Esther Hayut. As Hayut explained, the court first had to decide whether it had the authority to overrule a so-called “Basic Law,” Israel’s version of a constitutional amendment; then it had to decide whether the Basic Law in question was itself unconstitutional. She held that the court had the authority and that the Basic Law was unconstitutional.
Hayut’s logic went back to Israel’s 1948 declaration of independence, which announced that Israel would be a “Jewish and democratic state” and promised that the Knesset — Israel’s legislature — would eventually write a constitution. However, a constitution was never written — a testament to the complicated politics that have plagued the country from the start. Instead, the Knesset has enacted a series of Basic Laws over the years. The court, beginning in the early 1990s, inaugurated what has been called Israel’s “constitutional revolution” by treating those laws as constitutional and using them as a basis to overturn legislation that contravened them.
The result is that Israel has an extremely unusual body of constitutional law — one that lacks ground rules derived from a single document. Hayut reasoned that the unique nature of this system was a reason for the court to assert its authority. Israel has a parliamentary system — not a presidential one — so judicial review is one of the few ways to maintain the separation of powers.
Justice Daphne Barak-Erez, a former dean of the Tel Aviv University Law School who literally wrote the book on administrative law in Israel, pointed to the absurd consequences that the law would have created. Without review for unreasonableness, she maintained, ministers could fire career civil service members at will or ignore basic rules of day-to-day governance. With former US president Donald Trump unnamed, but perhaps looming in the background, Barak-Erez also hinted darkly that ministers exempt from judicial review would have the ability to interfere with peaceful democratic transitions.
The most conservative justices in the minority took the view that because the Knesset has the authority to create a constitution and write Basic Laws, that the courts lack the authority to overrule a Basic Law. These justices expressed dissatisfaction with what they considered a usurpation of power by the court. Justice Noam Solberg went so far as to suggest, at the end of his judgement, that it would be permissible for the Knesset to require a “consensus” of justices to overturn legislation — a suggestion that Hayut called out as a message to Netanyahu’s government to redraft the Basic Law and resubmit it to the court once it has new members. Hayut and another justice, both in the majority, have reached the age of mandatory retirement.
It seems all but certain that proponents of constitutional democracy in Israel are to mythologize this historic decision as speaking for the will of the people — that is, against authoritarianism and for the rule of law. The truth is more complicated. Israel’s public remains divided on the country’s future, including on what its democracy should look like.
When the Gaza war finally ends, Israel will have to return to these constitutional questions. Only then would it be possible to see if the high court’s decision functions as a unifying rather than a divisive force.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of The Broken Constitution: Lincoln, Slavery and the Refounding of America. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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