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Israel: Contentious judicial reforms have their day in court

September 11, 2023

After nine months of protests against the Israeli government's controversial judicial overhaul, the Supreme Court will hear petitions against the legislation on September 12.

Israeli Prime Minister Benjamin Netanyahu and lawmakers gather at the Knesset plenum to vote
Knesset speaker Amir Ohana suggested the government of Prime Minister Benjamin Netanyahu (center) might not accept the Supreme Court rulingImage: Amir Cohen/REUTERS

What's the current situation?

On July 24, 2023, the far-right coalition government passed the amendment to the "Basic Law: The Judiciary" with 64 votes for, 0 against in Israel's parliament, the Knesset.There were no votes against the amendment because the opposition had walked out of the Knesset chamber in protest.

This was the first round in the government's comprehensive judicial reformFollowing the vote, several civil society groups, assemblies of individual citizens and opposition parties filed petitions to the High Court of Justice to challenge the amendment and potentially strike it down. The highest court in Israel will hear these petitions on Tuesday.  

What's special about the court hearing? 

The hearing, which is expected to be broadcast live, has been described as "unprecedented" by Israeli media because, for the first time, all 15 justices will attend. Usually, the panel is comprised of between three or nine judges. Full attendance shows the importance of the matter.

Israeli Knesset passes judiciary changes

The judiciary will have to decide whether to limit its own authority. Until now, the court has refrained from striking down the Basic Law, which serves as a quasi-constitutional law.

Although Israel's Declaration of Independence in 1948 called for the adoption of a constitution, the country does not have one. Instead, in a compromise, the first Basic Law was passed in the Knesset in 1958. To date, 13 Basic Laws serve as a quasi-constitutional reference. They lay out the fundamental aspects of Israel's democratic system, governance and civil rights. 

"The real drama will be in the actual broadcast. We can hear what the judges are saying, when they ask the petitioners, so we might get some idea of what they are thinking," Amir Fuchs, a senior researcher and legal expert at the Israel Democracy Institute, told DW. 

What does the amended law say? 

The amendment to the Basic Law on the judiciary cancels the so-called reasonableness standard. It removes the ability of Israel's Supreme Court and other courts to deliberate over and rule against government and ministerial decisions, on the grounds that they are judged as "unreasonable."

This applies to, for example, political appointments or dismissals, such as ministerial or senior civil-servant positions.

Opponents versus supporters of the judicial overhaul 

Opponents of the law change have argued that it reduces the authority of the judiciary to potentially scrutinize decisions of government officials. For example, it makes it difficult for the Supreme Court to protect senior civil servants in cases of arbitrary, or politically motivated, firings.

Israel's Supreme Court building, seen from above
All 15 justices will come together for a hearing at Israel's Supreme Court in Jerusalem on September 11Image: Tania Krämer/DW

Supporters have said it halts the perceived judicial interference in the decisions of elected officials regarding government policy. The contend that the interference of the courts undermines the democratic principle of a majority rule, and say the court has no authority to rule on the issue.

The petitions against the overhaul argue that the amendment changes the basic structure of Israel's parliamentary democracy. The petitions also say the law harms the separation of powers, leaving the government without sufficient checks and balances. Another argument is based on technicalities: It questions whether the legislative process leading up to its passage was flawed. 

Is it easy to strike down an amendment to a Basic Law? 

Until now, the justices have not used the court's powers to revoke amendments to the Basic Law due to their quasi-constitutional weight. Therefore, the outcome is uncertain and legal experts are divided over what the justices will decide.

The decision will be based on a majority by the panel of judges, hence the uneven number of justices on the bench. Both the majority opinion and the minority opinion is expected to be published. Much of the focus will be on the court's president, Esther Hayut, to evaluate how she responds to the petition.

Israelis protest near Israel's Supreme Court during a demonstration
Israelis have protested against the judicial overhaul for the last nine monthsImage: Ilan Rosenberg/REUTERS

"We have seen in Hayut's years as a president that she avoided to strike down Basic Law, but she had many appeals against Basic laws. So, she either denied them or came up with some basic solutions, for example by postponing the time when the law becomes applicable or any other mitigating solutions," said Tal Schneider, political correspondent at The Times of Israel. 

Attorney General Gali Baharav-Miara, who advises the government in legal matters, has asked the court to strike down the amendment. She argued that the ability of the courts to apply the reasonableness standard for reviewing government actions is a critical part of Israel's democracy.

Knesset speaker Amir Ohana, however, suggested in a speech last week that the far-right government of Prime Minister Benjamin Netanyahu might not accept the court's ruling to void the amendment.

How quickly can we expect a decision? 

Most experts do not expect a swift verdict.

"We might see the outline of a decision in a short time, within a couple of days or weeks," Schneider told DW. "They might say 'We are going to give this decision, but we are giving the written arguments in a month or so.'"   

Most expect that a ruling will be given after the Jewish High Holidays, starting in mid-September, or before Hayut is set to retire as the court's president by mid-October.  

"There is no chance they will pass a verdict on [the day of the hearing]. It is not even sure they will finish all the petitions. It will take some time," said Fuchs, adding that "it will be a huge decision. If they strike down the law, it will be the first time in history that they strike down a Basic Law, and it will be the most important verdict that was ever written."

What are the potential scenarios? 

Observers have said that if the court nullifies the amendment and the government does not respect the ruling, it could lead to a serious crisis 

Israel is 'moving toward an authoritarian regime'

"It all depends on the government. If the government says, 'We will not listen to the verdict, we say that is it void and we just do as we want,' then we will have a constitutional crisis," said Fuchs. "But we are not yet there."  

Such a scenario would question which branch of the executive has the final say, with the protest movement, heads of civil services and security forces defending the democratic order.

If the amendment is nullified, and the government accepts it, this scenario might be averted. But Netanyahu's governing coalition could try to pursue another, potentially softer version of the bill. When the Knesset resumes its winter session by mid-October, the government is expected to continue to legislate the judicial overhaul. Attempts to reach a compromise with the opposition have, until now, largely failed.

Edited by: Robert Mudge, Carla Bleiker