On Monday 1 January 2024, the Israeli Supreme Court issued a decision that severely limits the judicial reform previously approved by Benjamin Netanyahu's government this July. The law, which was passed despite strong demonstrations in the Israeli streets, was intended to severely limit the powers of the court itself.The recent decision raised the prospect of an explosion of divisions in the national emergency government formed by Netanyahu after the 7 October Hamas-led attack, and a return to the turmoil that began last year.
Netanyahu's reform
The July reform is an amendment to a 'fundamental law'. Basic laws, which define the functioning of government and enshrine certain fundamental rights, have been enacted piecemeal for decades in place of a formal constitution.
The reform law deals with the legal concept of 'reasonableness'. This allows the Supreme Court to strike down government measures if they are deemed 'unreasonable'. The Israeli right wing has long been criticising the concept, considering it unclear and dangerous as judges can use it to subvert the decisions and interests of the democratically elected majority.
The opponents, on the other hand, claim that the power of the Supreme Court is a necessary check and counterbalance to that of the government in a country without a formal constitution and with a single legislative chamber. The fear is that the Netanyahu government - the most nationalist, conservative, and right-wing government in the country's history - could use the near-absence of legal limits upon the executive power to escape prosecution for corruption by the prime minister himself, and, more generally, to crush political minorities in opposition to it.
The public debate on reform has resulted in the biggest protests in the country's history, divided between those who want a more pluralist and secular Israel and those who want a more nationalist and religious country. Many sectors of Israeli society have come out against the law, in particular the reserve pilots of the Israel Defence Forces (IDF) and members of the Military Air Force.
The Court's response
The eight Israeli judges who annulled a key part of the judicial reform on Monday argued that they had no other choice due to the law's potential danger to Israeli democracy. On the other hand, the seven dissenting judges saw an excessive intervention in the decision to annul a law that limits the ability of judges to use 'reasonableness' as a legal standard.
According to Judge Yitzhak Amit, removing the doctrine from judges "damages several cornerstones of law and democracy: the rule of law, the right to due process, and the separation of powers. (...) Given the severe democratic deficit in Israel, as described above, such an erasure of the doctrine of reasonableness carries much more weight here than in other countries,' Amit wrote in his separate opinion.
For many external legal observers, however, the most important decision was the preliminary one. The judges first had to accept that they could exercise judicial control over a Basic Law. In court, lawyers and government allies argued that the judges had no basis to exercise such power over Basic Laws, which hold special status.
In the end, however, the court decided by a large majority that judges have the authority to annul the Basic Laws if they damage the fundamental principles of the Jewish and democratic character of the state. This precedent-setting decision was approved by an overwhelming majority. Twelve of the Court's fifteen judges approved it, while one abstained. The majority included both liberals and conservatives, posing a serious obstacle to the government's judicial agenda.
Netanyahu's response
Prime Minister Benjamin Netanyahu's coalition reported on Tuesday that, in the name of national unity with Israel at war, it is not planning any immediate response against the Supreme Court decision. Indeed, supporters and opponents of Netanyahu's plan have stressed the need to avoid internal upheaval while military forces are trying to eliminate Hamas in the Gaza Strip.
Moreover, this October, in reaction to the Hamas violence, Netanyahu's centrist rivals joined the national unity government, but only on the condition that he set aside the revision of the judicial system for the duration of the fighting. Nevertheless, Netanyahu could use Monday's decision to gain right-wing support in the upcoming elections by complaining about the power of the judges against the people's elected government.
Translated by Flora Stanziola
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