Israel: Choosing Its Battles?

Israel's supreme court has struck down the government's proposed reform to limit judicial powers in an unprecedented ruling. The controversial reform was in the spotlight until the Hamas attacks in October because critics accused it of eroding Israel's democracy. It featured an amendment to Israel's reasonableness law, which gave the Supreme Court the power to declare government decisions unreasonable.

The court ruled that the amendment should be struck down by a narrow eight votes to seven. At another time, the decision may have sparked political turmoil and even a constitutional crisis. But amid a war on Hamas, Israel's government has to surmount opposing political agendas.

Background

The law was the first of a set of reforms to be passed by the Knesset - Israel's Parliament - that would curtail the judiciary. The judicial overhaul proposed by Netanyahu and his right-wing coalition caused a major rift in Israel's politics and triggered months of nationwide protests. Citizens and Western allies were concerned about the country's democratic standards.

The amendment to the reasonableness law stripped the judiciary of the power to set aside a government decision that it deems unreasonable. The reasonableness standard is used by courts in several countries to determine whether a law or a public official's decision is lawful or "reasonable". It is used in countries that follow the common law system, such as the United Kingdom, Canada, Australia, and even India. 

An Israeli high court applied the standard this year when it ruled that it was unreasonable of Netanyahu to appoint his ally Aryeh Deri to ministerial posts, given the latter’s criminal convictions. The reasonable standard is one of the other tools the courts have to quash government and official decisions.

In its verdict, the Supreme Court held that the amendment to the basic law eliminated the capacity to judicially review decisions of the government, prime minister, and ministers.

Analysis

Supporters of the reform argue that reasonableness is a vague and subjective criterion for unelected judges to rely on to nullify decisions taken by elected officials who represent popular will. Critics of the amendment point out that the reasonableness law is a crucial tool for judicial review, particularly since Israel lacks a formal constitution. Moreover, it can only overturn state actions the court finds to be extremely unreasonable.

The reform enjoyed quasi-constitutional status since it was an amendment to one of Israel's Basic Laws. The most significant part of the Supreme Court's decision was a broader precedent that the courts can strike down Basic Laws (quasi-constitutional) if they undermine fundamental principles of the Jewish and democratic character of the state. The court declared that the reform, though quasi-constitutional, inflicted "severe and unprecedented harm to the core characteristics" of Israel's democracy. This part of the decision - a precedent-setter - was approved by an overwhelming majority of the judges across the conservative-liberal spectrum. The decision sets a historic precedent that imposes limits on Parliament and state power.

Netanyahu’s coalition has made it clear that it will not make any immediate counter to the decision, prioritizing national unity in light of the war with Hamas. This sentiment spanned across the political divide on the law, with supporters and opponents of Netanyahu’s signature plan keen to avoid a domestic crisis as the war with Hamas rages on. Given that Israel’s emergency war cabinet includes Netanyahu and two major critics of the judicial reforms (his centrist rivals), Netanyahu and his allies will have to shelve the judicial overhaul at this crucial time.

Mr. Netanyahu’s popularity has drastically fallen since the Hamas surprise assault. At a later point, his government may use the Supreme Court verdict to stir up support over the same issue - that the unelected judiciary overrides the elected government. In the worst-case scenario, a constitutional crisis could ensue - an irresolvable dispute between two branches of government. If the Israeli government refuses to abide by the court’s ruling and insists that it cannot strike down the law, Israel would face a serious setback while already in a delicate position. Yet, the war may change the nature of the debate when and if it resumes, as more pressing concerns grip the nation.