Is Israel in danger of entering a constitutional crisis?

LEGAL AFFAIRS: It is necessary to explore these scenarios, the consequences of a constitutional crisis, and just how likely one is to erupt.

 A sign reading "Save Israel from Netanyahu" is seen at a protest against the government's judicial reform, in Jerusalem, on July 23, 2023. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
A sign reading "Save Israel from Netanyahu" is seen at a protest against the government's judicial reform, in Jerusalem, on July 23, 2023.

Concerns about a possible constitutional crisis have been rising with the approach of the September 12 High Court of Justice hearing on the judicial reform’s reasonableness standard law, an amendment to one of Israel’s quasi-constitutional Basic Laws.

Prime Minister Benjamin Netanyahu, in numerous recent interviews in English, would not unequivocally state that he and his government would accept a court ruling overturning the law, only saying that he hopes it doesn’t come to that.

Police chief Kobi Shabtai and National Security Minister Itamar Ben-Gvir verbally sparred on Wednesday over law enforcement’s loyalties should there be a constitutional crisis. And hundreds of staff members of Israeli colleges issued an anxious warning on Thursday that Israel faces the “existential threat” of a constitutional crisis.

There are multiple scenarios that could unfold, depending on the decisions of the court, some more dramatic than others. As with any fear, understanding the problem helps abate dread. This is why it is necessary to explore these scenarios, the consequences of a constitutional crisis, and just how likely one is to erupt.

What is a constitutional crisis?

A constitutional crisis is a situation of legal and political uncertainty in which components of the state challenge each other’s authority and legitimacy.

 MK SIMCHA ROTHMAN, head of the Constitution, Law and Justice Committee and one of the architects of the government’s judicial reform legislation, attends a discussion and a vote on the reasonableness bill, in the Knesset last month.  (credit: YONATAN SINDEL/FLASH90)
MK SIMCHA ROTHMAN, head of the Constitution, Law and Justice Committee and one of the architects of the government’s judicial reform legislation, attends a discussion and a vote on the reasonableness bill, in the Knesset last month. (credit: YONATAN SINDEL/FLASH90)

Law professor and vice-dean of Reichman University’s Harry Radzyner Law School Yaniv Roznai argued that a constitutional crisis occurs when a constitution fails to channel political struggles into its legal framework.

Roznai contends that there are largely three types of constitutional crises. In the first scenario there is disloyalty to the constitution, in that politicians openly defy the document’s articles and rules. A constitutional crisis can also come about where there is excessive loyalty to the constitution, when there are flaws in the document’s design and it leads to legal or political uncertainty. Finally, there can also be situations in which there is a dispute about which state branch has a power, with different sides claiming the other is violating the constitution.

There are often public disputes about the constitution, but according to Roznai what distinguishes these from a constitutional crisis are the abnormal political measures taken to solve it, such as use of police against opponents, mass demonstrations, and use of military force.

Why could Israel enter a constitutional crisis?

Israel lacks a formal written constitution. Instead, it was decided to develop Basic Laws that, over time, would eventually be assembled into a constitution. A problem with these Basic Laws is that they have little supremacy over regular legislation, and there is no special method of introducing them. In the 1990s, the court interpreted new Basic Laws as having supremacy over normal laws in the so-called “constitutional revolution.” With this, the High Court developed the power of judicial review, the ability to strike down legislation that violated the Basic Laws.

The power of judicial review remains controversial until today, as it was a power that was not enumerated through legislation, but developed through court rulings and precedent. While the Right has, over the decades, begrudgingly accepted the legitimacy of judicial review, rulings addressing the expanding power of the court are a central component to the judicial reform. These included setting limits for judicial review with a new bill, which, among other restrictions, sought to prevent the High Court from engaging in judicial review of Basic Laws. While the bill was tabled in a “softening” of the judicial reform in March, the ability to strike down Basic Laws and their amendments is still hotly contested. At pro-reform protests in front of Supreme Court President Esther Hayut’s home in recent weeks, critics have argued that the court does not have this power, because of the super-legal status of the Basic Laws determined by the court itself. The Basic Laws themselves are the basis of judicial review, comparing normal legislation against their standard. The High Court has stated in rulings that it has the ability to review Basic Laws, but reserves it for the most extreme situations of abuse of constitutional authority and damage to fundamental democratic principles.

This debate could come to a head on September 12 when an expanded bench of 15 justices will preside over a hearing on petitions calling for the striking of the reasonableness standard law, an amendment to Basic Law: The Judiciary that prevents the courts from engaging in judicial review of ministerial and government administrative decisions that are deemed extremely unreasonable. The court could move to strike down the Basic Law amendment – and the government could refuse to accept the legitimacy of the action.

A slow developing crisis

Roznai said that there were two extremes, in which the court intervenes and the government rejects the ruling, and one in which the government accepts the ruling.

Hebrew University law professor and senior Israel Democracy Institute fellow Yuval Shany said that if the government were to accept the court’s ruling, it could further entrench the court’s authority to review Basic Laws amendments, at least in the short term.

“It would be also important to see what are the grounds for review. It’s one thing to strike down a Basic Law on the basis of mislabeling or on the basis of a procedural flaw. It’s something quite different to basically strike it down on the basis of authentic grounds that it is incompatible with basic democratic principles,” said Shany. This would enhance the court’s ability to conduct judicial review based on the state’s fundamental values.

If the government were to abide by the court’s invalidation of the law, Roznai said, “either [the government] will not continue with the judicial reform, or alternatively will say this is precisely the reason why we need the reform, and may try to push forward, at the very least, with the amendment to prevent the court from reviewing and invalidating basic laws.”

If the government were to reject the striking down of the Basic Law, Shany explained, nothing would happen immediately, because there isn’t anything that the government would be required to implement. The Basic Law was about a restriction on the court, not a government power. It could take weeks or even months before a crisis unfolds.

“What will happen, however, is that the next time that the government acts unreasonably, for instance, firing the attorney-general or appointing someone whose appointment is alleged to be unreasonable, and the bench reviews that decision and strikes it down on the basis of reasonableness, then there is where the rubber would hit the road,” said Shany. “You will have the question of who should the rest of the government apparatus listen to: to an illegally appointed director-general, or to the person who has been illegally fired by the government? And there you may have two lines of authority which are conflicting, one appointed by the government and one you can say protected by the High Court.”

Shany noted that appointments weren’t the only concern. A ministry might be told that a policy is unreasonable, and there would be a dispute about the ability to transfer a budget to finance the program – civil servants and the state apparatus wouldn’t know whom to follow. Without the High Court as the main interpreter of the law or Knesset as the generator of law, it is difficult to manage a state. There are also different levels of constitutional crisis, Shany noted.

“You could have a level where the legitimacy of the court is continuously challenged. And, in fact, we are in this place already. But you could also have cases where specific orders by the court are ignored or rejected,” said Shany.

Roznai said that, in a way, the constitutional crisis was already happening because the prime minister and high-ranking coalition members were saying in advance that they wouldn’t accept the ruling. Shany said that politicians may use strong rhetoric to indicate their opposition, but ultimately their actions would lead to a full-blown crisis or not.

How can a constitutional crisis be solved?

A constitutional crisis could be solved by political agreement or through coercion.

Shany said that a political solution could see the government or court standing down and submitting to the other’s position. This would likely require a change in governance or a legal reassessment by the court, he said.

Tomer Naor, the head of the legal department for the Movement for Quality Government in Israel, said that the way to avoid a crisis is to negotiate, to cancel the judicial reform program, and to bring about a broad agreement through all parties.

“Democracy is not just about majority rules, it’s also about compromise with the minority and respecting the systems in place that guide the rules for the game,” said Naor. It is upending these rules that has people worried about a constitutional crisis.

The big question that people are asking is “Will the police enforce the law or do what the national security minister says?” said Naor.

While Shany said that it is pure speculation to explore the legally uncertain point in which the different branches would use tools of the state against one another, he said that, “in theory, you could imagine the state attorney prosecuting ministers or trying to prosecute ministers for breaking the law or for breaching trust.”

What are the chances of the court striking down reasonableness?

While many have been concerned about a constitutional crisis arising from the striking of the Basic Law, many legal experts see a full cancellation as unlikely – but not impossible.

Naor said that while it would be the first time 15 justices assemble, “the court has never before interfered in a Basic Law amendment, so it’s hard to see them striking down a law.”

“I wouldn’t say it’s a high probability, but I wouldn’t also say it’s an impossibility,” said Shany.

Shany said that the reasonableness case doesn’t fall neatly into previous Basic Law ruling precedent, which had largely been held over labeling normal legislation a Basic Law. This time it is about issues of content or process. Roznai said that “the court would have to decide whether it violates the core elements of the state as a democratic state,” which was detailed in the ruling on the Basic Law: Nation-State ruling.

The petitions argue heavily on the reasonableness law as part of a judicial reform program that violates many democratic values. Roznai said the likelihood of striking down the law depends on whether the court would address the reasonableness law as part of a broader agenda or just the individual law. If examined only in isolation, the judicial task would be more difficult, but Roznai also said that it would be “hard to imagine when the court would ever intervene [with Basic Laws], because we would never have a Basic Law or amendment that would say Israel is no longer democratic.” There would only be incremental legislation eroding powers, which is why he thinks an aggregate view would be taken. Shany said there is a strong body of opinion about viewing legislation as part of a broader program’s impact.

Naor and Roznai suggested that the court may not completely strike down the law, but find other ways to address the issues. Shany said options include reading down the law, suspending application, and striking down the law, but that it would also be shocking if the court would read down the law.

Roznai said that reading down is quite a possible outcome. Like other courts around the world, the Israeli judiciary has shown in past rulings that it has preferred to interpret Basic Law amendments in a way that would address their more controversial impacts rather than strike down the law. There are many structural problems with the reasonableness law that leave room for interpretation.

“What they did, they simply removed the ability of the court to review the reasonableness of the decision of the government, but they don’t define what reasonableness is, they don’t refer to other possible reasons to intervene in judgments of the government, so in that respect it leaves a lot of room for maneuvering,” said Roznai.

The law could be read down by elaborating on what the law doesn’t address, such as the requirement for government officials to act reasonably and explain their policies and decisions. The court could say that “the law did not release the government from its duty to act reasonably, which indeed is true,” Shany explained. Naor suggested that the law could be interpreted to pertain specifically to appointments.

Interpretations could also introduce new tools for the court, said Naor, such as examining external interests. Roznai said that they could introduce the ability to review arbitrary and capricious decisions. Shany said that the court could, for example, expand proportionality doctrine to allow its application to administrative law. However, Shany said that the Knesset could pass another amendment against any new powers as well.

The court could also delay the application of the law, as the court has indicated it may do with another Basic Law amendment, the incapacitation law, on September 28. Ruling that a law only comes into effect after the next election can remove concerns about the personal benefit that the enactors can extract from the law.

Roznai suggested that the court could take the substantive and procedural problems into account and return the legislation to the Knesset, asking it to fix the law through a proper legislative process.

Naor said that the court could reject the petitions but use the historic 15 justice bench to establish the conditions for striking down Basic Law amendments, setting the stage for the next judicial reform bill to come before the court. •