The High Court of Justice faced two unprecedented challenges to Basic Law amendments on Tuesday with a flurry of petitions against one of the most controversial laws in recent memory, the reasonableness bill, and the Attorney-General's Office sanctioning the striking down of the incapacitation law.
While it is not impossible that the High Court may rule to use judicial review, based on the justices' past decisions and the repercussions, it remains unlikely.
The question at hand is what happens when the unstoppable force of judicial review meets the immovable object of the basic laws. The court is being asked to dare answer this question by using judicial review to strike down a matter of a basic law for the first time.
Israel lacks a formal written constitution, but at the dawn of the state adopted a compromise in which the quasi-constitutional Basic Laws would be legislated and then at some indeterminate point assembled into a constitution. A problem with the basic laws is the ease with which they can be introduced and amended. They also originally had no status over regular legislation.
The High Court has the power of judicial review, the ability to strike down legislation that is in contradiction with the founding principles and constitutional framework. This power developed over the decades since the state's founding, but the current version coalesced during the 1990s during the "constitutional revolution."
The current iteration of judicial review was in large part inferred from the introduction of new Basic Laws, Human Dignity and Liberty, and Freedom of Occupation which had provisions that prevented other legislation from contradicting them. This allowed the court to strike down contradictory laws.
Petitioners on Monday and Tuesday challenged the judicial reform bill amending Basic Law: The Judiciary limiting the reasonableness standard, which allowed judicial review of government administrative decisions if they were deemed extremely beyond what a responsible authority would decide.
The petitions argued that the Knesset had violated its constitutional authority -- the right to continue the constitutional process by introducing Basic Laws and amendments that established the general constitutional guidelines for the structure of the state and government, powers and relationships between the branches.
The reasonableness standard bill was passed to extract immediate political benefit and was about a specific tool rather than a general rule, petitioners contended.
Similarly, Attorney-General Gali Baharav-Miara sent shockwaves through the legal system when she sanctioned the striking of the incapacitation law, an amendment to Basic Law: The Government, saying that it was a personal law to improve the legal situation of Prime Minister Benjamin Netanyahu.
The law clarifies that the prime minister can only be ruled incapacitated over health issues and with a series of voting conditions by the government. The attorney-general said that the law was introduced because Netanyahu feared being deposed through the previous iteration of the law over alleged violations of his conflict of interest agreement.
While these are major developments, the court is likely not to strike down Basic Law amendments because of its own perceived limitations, and past ruling patterns, and because it could cause more problems than it would solve.
Rulings on Basic Laws
Many legal experts, such as former attorney-general Avichai Mandelblit, believe that the High Court has no capability to strike down basic laws. The basic laws are the fundamental legal framework under which the power of judicial review exists. It could be argued that amendments exist in a gray area, where the previous guidelines can be compared to new incoming alterations. There are also other considerations at play, such as fundamental values of the state, such as its Jewish and democratic character.
Many members of the current bench headed by Esther Hayut appear to believe that they do have the capacity to engage in judicial review of basic laws, as made evident by the fact that they heard petitions largely centered around striking basic law legislation. However in discussions and rulings like the "Deri Law" case in January, they have expressed that it is a last resort and that the law must be in the far extreme.
Baharav-Miara argued on Tuesday that the incapacitation law was so extreme that it merited falling into this sliver of power over Basic Laws. However, the Knesset Legal Adviser also put forward strong arguments about the amendment, saying that it operated within constitutional norms as a broad law regulating the position of the prime minister that was lacking in the previous basic law version. Moreover, the connection between the law and Netanyahu's removal from office over a conflict of interest isn't immediately evident, even if he and his supporters believed it made an impact.
Former attorney-general Avichai Mandelblit has said that even if the High Court could strike down a Basic Law, it would require criminal elements or tear down Israel's democratic system. This is probably why much of the petitions filed on Monday and Tuesday against the reasonableness standard bill focused heavily on making the case that the amendment would ruin fundamental democratic institutions like the rule of law and separation of powers, and was part of an agenda to upend Israel as a democracy.
Looking at the recent rulings on Basic Laws, we see that the court has been reluctant to act against amendments, even though it expressed dislike of the legislation.
In January, the court heard arguments against a Basic Law: The Government amendment that allowed Shas Chairman Arye Deri to assume the role of minister despite his past prison sentences. The court declined to rule on the law itself and instead ruled largely based on the reasonableness standard, that it was unreasonable that Deri, who had been convicted multiple times of corruption while in public office, should get such a role. The court made this decision though it felt that the law was tainted by a "distinct personal stain."
While the court in 2020 was suspicious of the amendment that allowed the creation of the role of alternate prime minister and rotation governments but refrained from striking it down. The same year while the court had misgivings about the Nation-State Law, it decided instead of striking it down that it would strive to interpret the legislation to prevent damage to rights and clashes with other Basic Laws. This shows that the court is incredibly reluctant to engage in a review of basic laws.
What may further stay the court’s hand is that striking down these laws may also cause more damage to Israel’s system than it would repair. The striking of a basic law would create a constitutional crisis, a situation in which the legal boundaries on authority and legitimacy are unclear. The government may continue in defiance of the court’s decision, bringing Israel’s entire system into question and creating further political strife and polarization on the streets.
The danger of a constitutional crisis is more of a deterrent considering that in the grand scheme, the court may feel that reasonableness is not worth the fight. It is but one of many powers that the court has at its disposal, such as proportionality. As some legal experts have proposed, the court could simply develop a new power similar to reasonableness through the ruling, as it is a common law doctrine, not derived from legislation.
What the court may attempt to do instead of striking down reasonableness is instead lay out and enshrine its own tools available instead of reasonableness, securing its position on safe ground while ceding already lost territory.
Israel has faced tumultuous times in the past several months, and it may continue to pass through dire straits both politically and legally. The legal challenges to Israel’s basic laws should not be underestimated, and their striking remains a possibility, even if the High Court is severely restricted in doing so politically and principally.