Netanyahu could ignore ruling, sparking constitutional crisis

Israel on edge as Supreme Court convenes for historic, crucial overhaul hearing

All 15 justices in court to hear petitions against reasonableness law; Levin calls hearing ‘a mortal blow to democracy’ as Lapid labels the legislation ‘deviant and thuggish’

All 15 of Israel's Supreme Court justices appear for the first time in the country's history to look at the legality of Prime Minister Benjamin Netanyahu's "reasonableness" law, enacted in July, in Jerusalem, Tuesday, Sept. 12, 2023. (Debbie Hill/Pool Photo via AP)
All 15 of Israel's Supreme Court justices appear for the first time in the country's history to look at the legality of Prime Minister Benjamin Netanyahu's "reasonableness" law, enacted in July, in Jerusalem, Tuesday, Sept. 12, 2023. (Debbie Hill/Pool Photo via AP)

For the first time in Israeli history, all 15 justices of the Supreme Court convened in Jerusalem Tuesday for a high-stakes hearing to consider petitions against the contentious reasonableness law, passed in July, that bars the court from exercising judicial review over government and ministerial decisions and appointments.

Tuesday’s hearing — positioned as part of an unprecedented clash between the court and Prime Minister Benjamin Netanyahu’s government over its planned overhaul of the judiciary — started at 9 a.m. and will likely stretch well into the afternoon. No ruling is expected for several weeks or even months, but the session will be closely watched in Israel, with the justices’ questions offering a hint of what direction they may be leaning toward.

Shortly before proceedings began, Justice Minister Yariv Levin issued a statement declaring the hearing was taking place “with the complete lack of authority” and saying it constitutes “a mortal blow to democracy and the status of the Knesset.”

“Presidents and justices of the Supreme Court for generations all agreed — the people is the sovereign, and its will is represented in Basic Laws legislated by the Knesset,” Levin said, referring to Israel’s quasi-constitutional laws. (Israel does not have a constitution.)

“The court, whose justices elect themselves behind closed doors and without a protocol, is placing itself above the government, above the Knesset, above the people and above the law,” charged Levin, the architect of the coalition’s judicial overhaul package, which includes a bill that, in its current text, would grant the coalition near-complete control over the appointment of all Israel’s judges.

Levin argued that it is not the government’s judicial overhaul, as opponents charge, but rather the High Court hearing that “shakes the foundations of democracy in Israel.”

MK Simcha Rothman arrives at a hearing on petitions against the government’s ‘reasonableness law,’ at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/FLASH90)

In his own statement Tuesday morning, Opposition Leader Yair Lapid argued that the government’s reasonableness law “isn’t a Basic Law” and doesn’t even “resemble a Basic Law.”

“This is an irresponsible document on which somebody wrote ‘Basic Law,’ and they have since demanded it be treated as a holy scripture,” Lapid said, calling the legislation “deviant and thuggish” and saying it was pushed through the Knesset “in a process that was violent, rushed, sloppy, boisterous and unrestrained, and which has nothing to do with Basic Laws.”

Lapid added that “those who want Basic Laws to be treated with awe should start by legislating them in an adequate process. Basic Laws have a procedure. A minimum of respect for the process. This minimum didn’t happen. Not even close.”

The crucial High Court hearing comes after more than nine months of sustained, massive protests and fierce opposition to the hardline Netanyahu coalition’s bid to radically overhaul the judiciary, starting with the passage of the reasonableness law, which the government pushed through the Knesset on July 24.

Protesters outside the the High Court hearing on the ‘reasonableness law’ at the Supreme Court in Jerusalem, September 12, 2023. (Noam Revkin Fenton/FLASH90)

The divisive law eliminates the court’s ability to review and potentially block government and ministerial actions and appointments using the legal concept of reasonableness. Significantly, the law is an amendment to one of Israel’s quasi-constitutional Basic Laws — Basic Law: The Judiciary. Proponents of the legislation argue that the court has no right of judicial review over such laws, even though they can mostly be legislated and amended with an ordinary Knesset majority.

The petitioners, an array of government watchdog and civil society organizations, argue that the Basic Law amendment severely harms Israel’s democracy.

Political tensions have flared ahead of the court hearing, in which — for the first time — the full panel of 15 judges will hear the petitions. Justice were reportedly issued added protection amid fears of disruptions and protests.

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system and in support of the Supreme Court, in Jerusalem, September 11, 2023. (AP/Ohad Zwigenberg)

Israel Police reportedly increased security on the basis of intelligence that protesters might try to block the judges from traveling to Jerusalem for the court session, Channel 13 news reported Monday night. Some judges spent the night away from home as a precaution against difficulties in reaching the Supreme Court building in the capital on Tuesday, the channel said.

In addition to the increased protection for the justices ahead of the hearing, there was also tight security on Tuesday at the court building as another precaution against disruption.

A handful of supporters of the hardline coalition’s judicial overhaul were demonstrating outside the court during the hearing Tuesday morning, with some wearing banana costumes as a reference to a purported banana republic.

Authorities were also concerned that demonstrators from the opposing camps could clash with each other in the capital over the course of the day Tuesday.

An illustrative photo of a court room in the Supreme Court in Jerusalem. August 1, 2023. (Chaim Goldberg/FLASH90)

On Monday evening, tens of thousands of demonstrators rallied against the government’s plans in a show of support to the judicial system outside the Supreme Court in Jerusalem.

On Tuesday morning, Israel’s two main news channels began live broadcasts on the hearing as early as 6 a.m., though they largely addressed other news for the first few hours before the hearing began at 9 a.m.

The court faces massive public pressure to strike down the reasonableness law and has an inherent interest in preserving its powers and independence. But if it does, Netanyahu’s government could ignore the ruling, setting the stage for a constitutional crisis over who has ultimate authority.

Netanyahu and other members of his government have been noncommittal on whether they will respect a potential High Court ruling against the law, with several suggesting they would not while three ministers said Sunday that decisions by the court must be adhered to.

Anti-overhaul activists protest outside the Supreme Court in Jerusalem, September 11, 2023. (Noam Revkin Fenton/Flash90)

The law is the only component of the coalition’s broader judicial overhaul program that has been passed by the Knesset so far. It prohibits the courts from reviewing government and ministerial decisions using the judicial standard of reasonableness, whereby it can determine that a decision was invalid because it was made without properly assessing key considerations, or while using improper considerations.

Like other parts of the radical agenda, it has faced massive, sustained opposition from protest groups and opposition parties.

Opponents of the law argue that it could potentially undermine the independence of senior law enforcement agencies, since without the reasonableness standard, it will be difficult to challenge arbitrary dismissals of officials.

Overhaul supporters have argued that the law is necessary to stop the High Court from asserting its own worldview on government decisions and actions, and have said that the dismissal of senior law enforcement officials will still be subject to other tools in administrative law.

AP contributed to this report.

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