A Consequential Ruling from Israel’s High Court

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Late on Jan. 1, Israel’s highest court struck down a controversial judicial overhaul law enacted last year by Prime Minister Benjamin Netanyahu’s government that would have limited the justices’ power. The ruling was supported by eight members of the court and opposed by seven, a razor-thin margin that is reflective of the divide within Israel itself over the judicial overhaul plan.

The court’s decision could revive the deep political and social tensions generated by the judicial reform effort last year, even as the country struggles to recover from the brutality of the Oct. 7 Hamas attacks and tries to cope with an ongoing war in Gaza.

The ruling addressed a central piece of the judicial overhaul that Netanyahu was pushing before the Gaza war erupted. The law, which was passed last July, took away the court’s power to abrogate government decisions it finds to be “unreasonable in the extreme.” The law was part of a larger package of reform legislation promoted by the Netanyahu government that is designed to limit the court’s powers and give more control to lawmakers.

Proponents of the law argued that activist, liberal judges control the court, and that legislation was necessary to restore a proper balance of powers. Opponents argued that the legislation undermines the court’s role as a check on executive power and abuse and threatened to erode Israel’s democratic balance of powers.

Israel does not have a written constitution. It relies on a series of basic laws, which have special, quasi-constitutional status, to lay out the basic principles of how the state will operate. The basic laws have been treated by Israel’s courts as the country’s constitution.

Although the vote to strike down the law was by a narrow 8-7 margin, the same justices voted 12-3 in favor of the proposition that the court has the right to strike down a basic law in “unusual and extreme cases,” where a law is deemed to go against the core principles of Israel as a Jewish and democratic state.

Israel’s supreme court has never before struck down one of the country’s basic laws. So, the ruling is significant. And but for the fact that a draft of the decision was leaked to the press the day before the ruling was issued, many speculate that the court would have otherwise been reluctant to issue such a closely divided and consequential ruling while the country is embroiled in a draining war effort.

But the opinion has been issued and could reawaken the pre-war political divide within the country over the judicial overhaul plan. This is so particularly since it comes at a time of mounting accusations of government distraction, incompetence, weakness and feckless leadership that has been bubbling to the surface in recent weeks.

The ruling coalition has legislative options it can pursue to address several of the concerns of some of the justices, or directly limit the ability of the court to strike down basic laws. But any such move at this time will only exacerbate an already volatile reality in Israel. The better course is to do absolutely nothing, for now.

Instead, Israel needs to focus on the war effort and a secure return of the hostages while developing a plan for post-war Gaza and rebuilding confidence in government and leadership. There will be plenty of time to address the issues of Israel’s basic laws once that is done.

 

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