AEight judges were in favor, seven against. With the narrowest possible majority, Israel's Supreme Court overturned a law change passed by parliament in the summer that was part of Prime Minister Benjamin Netanyahu's government's “judicial reform.” The judges thereby declared invalid a regulation that affected them: the Knesset had deprived Israeli courts of the opportunity to reject decisions by the government and ministers as “inappropriate”.
Several petitions have been submitted against this. In the decision published on Monday evening, the majority of judges followed the complainants' arguments that the change in the law undermines Israel's character as a Jewish and democratic state.
The decision has the potential to cause a constitutional crisis
Former court president Esther Hayut wrote in her reasoning that these principles were enshrined in Israel's Declaration of Independence and that it was the job of the judges to control the actions of the legislature with this in mind. The change in the law “does the greatest possible harm to the principle of separation of powers and the principle of the rule of law,” she wrote. It therefore represents “a serious blow to two of Israel’s clearest characteristics as a democratic state.”
The decision is historic in several respects: For the first time, the entire 15-person panel of judges heard petitions against a law. This circumstance is closely linked to the second precedent that is being established: for the first time, the Supreme Court has declared invalid parts of a law that has been declared a “basic law”. The Basic Laws form Israel's catalog of fundamental regulations that will one day form a constitution.
In particular, representatives of the religious-right-wing nationalist government coalition had denied that the court even had the authority to declare a basic law invalid. Twelve of the judges now explicitly stated that this was possible – including several judges who had spoken out against the cancellation of the change in the law. This could lead to a constitutional and political crisis, as several government representatives had threatened in the summer that they would not bow to a court decision that was disadvantageous to them. Netanyahu had avoided making a clear statement on the issue, but also expressed the opinion that the court had no authority to declare a basic law invalid.
As a result, the initial reactions to the decision on Monday evening were contradictory. They recalled how divided Israel was just a few months ago due to the judicial reform – but due to the Hamas terrorist attack on October 7th and the war that followed, the issue had then faded into the background. The Movement for Quality Government in Israel, which submitted one of the petitions, spoke of a “tremendous public victory for those who want democracy.”
Opposition leader Jair Lapid assured the court of his “full support”. “If the government resumes the fight for the Supreme Court, it will have learned nothing,” he said. Justice Minister Jariv Levin, one of the architects of the judicial reform, the first part of which was the “adequacy” law, accused the judges of “taking into their hands with the ruling all the powers that exist in a democracy between the three branches of government are divided”.
There was also criticism that the decision was announced during a war. However, court president Hayut only had until January 12th to participate in the decision.
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