'The words "Basic Law" are not a magic key to block review'

140 jurists lambaste coalition for claiming High Court can’t review Basic Laws

Ahead of potential constitutional showdown, group of academics argue current leadership is ‘seeking to serve as a single branch of government, elevated above all the rest’

Michael Bachner is a news editor at The Times of Israel

A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister's Office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)
A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister's Office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

A group representing 140 jurists castigated Prime Minister Benjamin Netanyahu’s coalition Monday for stating a day earlier that the High Court of Justice does not have the authority to scrutinize quasi-constitutional Basic Laws.

The Israeli Law Professors’ Forum for Democracy argued that by claiming the top court cannot intervene in the legislative process, the ruling coalition was seeking to become “a single branch of government” with no form of oversight limiting what it can do.

Heralding a potential constitutional crisis, the High Court has set hearings before expanded panels of justices on the legality of two highly controversial pieces of legislation passed by the current government — both amendments to Basic Laws that critics allege go against Israel’s democratic foundations.

One bars the court or the attorney general from ordering a prime minister to recuse himself, while the other bars the court from striking down cabinet or ministerial decisions based on their “unreasonableness.”

The court has never yet struck down a Basic Law, or an amendment to one, due to their quasi-constitutional nature, but has developed doctrines that might enable it to do so, or otherwise intervene.

In a statement issued Sunday, hours after the High Court indicated it could demand that the government put off application of the recusal legislation until after the next election to prevent it from being a law for Netanyahu’s personal benefit, coalition party heads claimed that the court had no authority to strike down a Basic Law or to otherwise intervene in its implementation, saying that such a decision would ruin the relationship between Israel’s branches of government.

In their statement Monday, the 140 jurists — including senior lecturers in academic institutions — argued that contrary to what the coalition claimed, the court has the power to evaluate the merits of Basic Laws, since the process of legislating them is similar to the process of regular laws.

“The meaning of the coalition heads’ declaration is that the coalition majority can immunize any action from judicial review by giving it a headline of ‘Basic Law,'” said the statement reported by Channel 12 news.

Coalition lawmakers crowd around Justice Minister Yariv Levin to take a celebratory selfie in the Knesset plenum, as they pass the first of the coalition’s judicial overhaul laws, July 24, 2023. (Yonatan Sindel/Flash90)

“Without a constitution and without self-restraint, the coalition is seeking to serve as a single branch of government, elevated above all the rest: a constituent assembly, a legislative branch, an executive branch and now also a judicial branch,” it continued.

The signatories, led by Dr. Ronit Levine-Schnur of Reichman University, argued that the coalition was “crushing the system’s fundamental values and abusing the legislative process,” and therefore must be subjected to independent judicial scrutiny.

“The words ‘Basic Law’ are not a magic key that locks all the doors to judicial review, or else every law can be called a Basic Law, shielding every unacceptable norm from judicial review.”

One of the two pieces of legislation in question is an amendment to Basic Law: The Government, which was passed in March and eliminates the ability of the court or the attorney general to order a prime minister to recuse themselves from office.

The law was apparently passed to ensure that Netanyahu, who is on trial on multiple counts of corruption, will not be ordered to step down due to any alleged violation of a conflict of interest agreement he signed in 2020. The prime minister had become increasingly concerned that Attorney General Gali Baharav-Miara would order him to recuse himself after she stated he would be in violation of his conflict of interest agreement if he involved himself in his government’s judicial overhaul. Baharav-Miara has asked the court to strike down the recusal law, but has reportedly made clear that she is not considering ordering the prime minister’s recusal.

Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister’s Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)

The conflict of interest agreement prohibits Netanyahu from making judicial appointments, and arguably, any broader changes to the judiciary, such as those his government has been advancing.

On Sunday, the High Court issued an interim injunction relating to the recusal law and expanded the panel hearing petitions against the legislation to 11 justices, indicating that it is formally considering intervention in the law — likely on the grounds that the parliament had misused its constituent power, meaning it improperly used its authority to legislate a Basic Law for a narrow, short-term, political or personal reason.

The court’s injunction instructed the prime minister, the Knesset and the attorney general to explain why the court should not rule that the recusal law will only take effect at a later date.

The second piece of legislation is the government’s highly contentious “reasonableness” law, passed as an amendment to Basic Law: The Judiciary, which bars the top court from reviewing politicians’ decisions based on the judicial doctrine of reasonableness.

Critics of the law have said that passing such a critical piece of legislation without consensus — all 56 members of the opposition boycotted the vote — and at a swift pace that did not allow much time for deliberations or review, could and should lead the court to consider taking action, especially when it is part of the government’s wider plan to overhaul the judiciary.

The High Court will hear the eight petitions it has accepted against the law on September 12, convening for the first time the entire 15-judge panel for the hearings.

Netanyahu has repeatedly refused to commit in recent interviews to honoring a theoretical High Court decision striking down the “reasonableness” law, raising concerns about such a scenario, which could plunge Israel into a constitutional crisis.

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