If only the ‘reasonableness law,’ nixed by Israel’s top court, had never been initiated

Monday’s Supreme Court decision would have plunged Israel into a constitutional crisis, were it not for the fact that we’re deep into a bitter, complex war that supersedes all else

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Then-prime minister Benjamin Netanyahu (right) and Supreme Court president Esther Hayut at a ceremony at the President's Residence in Jerusalem on June 17, 2019. (Noam Revkin Fenton/Flash90)
Then-prime minister Benjamin Netanyahu (right) and Supreme Court president Esther Hayut at a ceremony at the President's Residence in Jerusalem on June 17, 2019. (Noam Revkin Fenton/Flash90)

After the Knesset in July passed an immensely contentious law preventing Israel’s courts from exercising judicial oversight of government and ministerial decisions on the grounds of reasonableness, Prime Minister Benjamin Netanyahu repeatedly refused to pledge that he would honor any future Supreme Court ruling to strike the law down.

Such a ruling by the country’s top justices would take Israel into “uncharted territory,” he told CNN, for instance, when asked directly whether he would abide by it. “And I really would like to believe that they won’t do that.”

On Monday, by the narrowest possible margin of 8-7, the full Supreme Court bench indeed struck down the so-called “reasonableness law,” and indeed took Israel into “uncharted territory,” since its ruling marked the first time in Israel’s history that the top court had ever nixed any part of the country’s “Basic Laws.”

Given Netanyahu’s ambivalence ahead of time over honoring the ruling, and his ongoing support for his justice minister, Yariv Levin, for whom the “reasonableness law” is only the first step toward asserting near complete coalition control over the judiciary, Monday night’s ruling would have been expected to immediately plunge Israel into a full-scale constitutional crisis.

But these, of course, are far from ordinary times in Israel. October 7 saw 3,000 Hamas-led terrorists slaughter 1,200 people and abduct 240 more in southern Israel, and the IDF has been fighting a bitter, complex war to dismantle the Gaza-ruling Islamist terror group ever since. It is also battling Hezbollah rocket and missile fire across the northern border, among what Defense Minister Yoav Gallant last week listed as seven active fronts where Israel is facing attacks.

In his predictably furious and disingenuous first response to the court’s ruling on Monday, Levin accused the justices of doing precisely what he has been seeking to do — “taking into their hands all the authorities that in a democracy are divided between the three branches of government.” This creates a situation, Levin argued, “in which it is impossible to legislate even a Basic Law or make any decision in the Knesset or the government without the agreement of the Supreme Court, depriving millions of citizens of their voice.”

He vowed that the decision “won’t stay our hand,” but he also said that the government would “continue to act with restraint and responsibility” so long as the IDF’s military campaign was in progress.

Protecting the IDF

In her majority ruling, the former Supreme Court president Esther Hayut said the reasonableness legislation “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” and thus constitutes “a severe blow to two of the most explicit characteristics of Israel as a democratic state.”

The fiercely independent and world-renowned top court, it should be noted, has been vital to Israel’s capacity to push away efforts by international courts and tribunals over the years to prosecute the IDF, its commanders, soldiers and political overseers for war crimes and other alleged offenses. With South Africa now seeking to have the International Court of Justice declare Israel is engaged in genocide in Gaza, the renewed proof of the court’s democratic will and independence may prove particularly timely.

Since the legislation, an amendment to Basic Law: The Judiciary, is the only part of the Netanyahu-Levin judicial overhaul package to have been enacted, and arguably a relatively minor element in that package, there can be no doubt that the top court in its current iteration would strike down further legislation that Netanyahu and Levin were advancing — including laws that would give the ruling coalition almost complete control over the appointment of all of Israel’s judges, radically constrain the Supreme Court’s capacity to strike down legislation, and enable the governing coalition to re-legislate any laws that are struck down.

But the Supreme Court in its current iteration does not really exist anymore. Hayut formally retired in October, as did another justice, Anat Baron. They issued their decisions Monday under procedures by which justices can rule on cases they have heard for three months after their retirement. And their two votes to strike down the law were crucial to the court’s majority.

Amid the dysfunctional relationship between the coalition and the judiciary, Levin has refused to convene Israel’s Judicial Selection Committee to choose their replacements on the bench. But the fact is that the 13 non-retired justices on today’s Supreme Court voted 7-6 to uphold the law, and there’s no telling how the two yet-be-elected justices would have ruled; indeed, there’s no telling who they might be.

In that context, a second element of the Supreme Court’s ruling Monday night is arguably no less important than the main decision.

The right to intervene

Although only 8 of the 15 justices ruled to nix the “reasonableness law,” 12 of them firmly declared that the Supreme Court has the right in principle to strike down Basic Laws that undermine Israel’s Jewish and democratic character, and a 13th upheld that right in extreme circumstances.

Among their arguments was that most of Israel’s ostensibly quasi-constitutional Basic Laws can be legislated and amended with a simple Knesset majority, rather than any kind of supermajority that would require a degree of opposition agreement. Indeed, the reasonableness law was passed in July with just the coalition’s 64 votes in the 120 Knesset; all 56 opposition MKs boycotted the vote to underline their complete abhorrence of the amendment.

The overwhelming support on the Supreme Court for the right in principle to strike down Basic Laws would appear to bode ill for Levin’s future hopes of winning the justices’ consent to the still more draconian elements of the coalition’s judicial overhaul, even with a post-Hayut bench.

That stance should also impress upon Israel’s politicians, in government and opposition, the imperative to negotiate a consensual change to the process for legislating Basic Laws, as a step toward an Israeli constitution.

And it would suggest that if Levin, and, more importantly, Netanyahu do intend to resume their bid to subjugate the judiciary to the political echelon once the war is over, the constitutional crisis will be unavoidable.

For now, the war comes first

But of course, the war against Hamas is anything but over; the potential for escalation is emphatically present on the northern border, and other fronts could heat up, too.

There’s no knowing when the guns will fall silent, what kind of reality Israel will then find itself in, and whether Netanyahu and Levin will be able in any position to reactivate their devastatingly divisive legislation.

In a typically careful answer to a reporter’s question on Monday night, IDF spokesman Daniel Hagari said it was “reasonable to assume” that one of the factors that led Hamas to carry out its terrible slaughter on October 7 was its perception regarding “the rift” in Israel “and the army’s readiness.”

For now, the only piece of overhaul legislation that the Netanyahu coalition managed to bulldoze through parliament in its pre-war months in office, causing the debilitating schisms within the Israeli public that Defense Minister Gallant warned so presciently were posing a tangible threat to Israel’s security, has been rendered null and void.

If only it had never been initiated.

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