ISRAEL AT WAR - DAY 138

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Analysis

Tel Aviv police crisis presages potential constitutional showdown

Should the High Court move to strike down judicial overhaul and the government reject its ruling, an unprecedented crisis looms; police and army would be unclear on whom to follow

Carrie Keller-Lynn

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Otzma Yehudit chief Itamar Ben Gvir (R) and Israel Police Commissioner Yaakov Shabtai attend a Hanukkah ceremony at the Western Wall in Jerusalem's Old City, December 19, 2022. (Yonatan Sindel/Flash90)
Otzma Yehudit chief Itamar Ben Gvir (R) and Israel Police Commissioner Yaakov Shabtai attend a Hanukkah ceremony at the Western Wall in Jerusalem's Old City, December 19, 2022. (Yonatan Sindel/Flash90)

The government is charging ahead with its controversial plan to remove key judicial checks on political power, the coalition and opposition have yet to engage in constructive dialogue, and mass protests grow from week to week.

Presuming Justice Minister Yariv Levin meets his self-imposed deadline to pass the first tranche of reforms into law within the month, the crisis may be headed for a showdown in the High Court of Justice — whose powers to review legislation are the focus of much of the coalition’s overhaul.

In addition to giving the coalition control over the panel that appoints judges, Prime Minister Benjamin Netanyahu’s coalition is pushing to constrain the High Court’s ability to review broad swaths of legislation. According to its plan, the court would not be able to exercise any judicial review over quasi-constitutional Basic Laws, including the very legislative amendments creating the limitation. Furthermore, the coalition is creating a mechanism to deliver preemptive immunity from judicial review for regular laws, and wants to create a high bar of 12 of the court’s 15 judges to exercise review at all.

Civil society groups have already pledged to petition the High Court to review these laws, should they be finalized. If the High Court invalidates the very laws the Knesset says it cannot touch, and the government refuses to accept the court’s authority, Israel will face a constitutional crisis. If the judiciary becomes pitted against the legislative branch, then the executive, as well as security forces, judicial organs, and civil society writ large, will have to choose to whom to listen.

Israelis had a tiny taste of the type of crises they might face on Thursday, when National Security Minister Itamar Ben Gvir said the Tel Aviv District police commander would be removed, ostensibly at the commissioner’s prior recommendation but while expressing clear anger at the lack of a crackdown on unruly anti-government protesters.

Attorney General Gali Baharav-Miara stepped in and called for a freeze on the move, on suspicion that it went beyond the minister’s authority. Police Commissioner Kobi Shabtai quickly acquiesced to her order, admitting he’d made a mistake.

Attorney General Gali Baharav-Miara attends a conference in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)

Constitutional scholar Amir Fuchs of the Israel Democracy Institute warned that the incident is “a sign, in a way, of what we’ll see after the full reform,” which includes a measure to strip power from the attorney general and her subordinate legal advisers, making their counsel non-binding upon the government.

While a possible harbinger of fights to come, the past weekend’s incident ended well because the government listened to justice officials, said Aeyal Gross, law professor at Tel Aviv University.

“It was a good preview, in the sense that the government complied with the verdict,” he said. He also noted Netanyahu recently firing Aryeh Deri, a key political ally, from his cabinet after the High Court found the appointment “unreasonable in the extreme” and the attorney general pressed the premier to do so.

Had Netanyahu — or police in the most recent case — ignored the instructions, Gross said it would be “quite uncharted territory.”

“In the past, the government dragged its feet if it didn’t like a decision, but it didn’t say outright that it wouldn’t obey a decision,” he noted.

To comply or not to comply

Fuchs thinks it is “more likely” that the government will comply with a court order, but court involvement would push compromise rather than invalidating the reform wholesale. While compromise has yet to gain traction in the legislative process, he said that “there can be compromise after the verdict.”

It would be unprecedented and extreme if the government were to brush off court orders, even against the coalition’s hard-charging legislative package. Yet, if this nuclear option were to occur, Fuchs said, “we will be in a very dangerous and problematic situation.”

Dr. Amir Fuchs, senior researcher at the Israel Democracy Institute’s Center for Democratic Values and Institutions (Courtesy Israel Democracy Institute)

“It’s not a theoretical issue,” he said, pointing to a likely first challenge to emerge.

“They will have to assemble the new Judicial Selection Committee,” which the Knesset pushed off until the coalition’s bill to reshuffle its membership passes. “The High Court will say it’s illegal and the Knesset is doing it in contempt of court.

“Very soon, we’ll get to a point where the police have to decide” whether to enforce court orders blocking the new assembly, he said.

Such a first constitutional crisis can emerge “the day after the legislation [passes]” because the court might issue a temporary restraining order blocking the formation of the new panel.

Gross suggested that “the first test will be with the judges; the judges themselves have to decide what to do.”

But regardless of how judges, police, and security forces choose to handle a scenario in which the government ignores the court, Gross said that brushing off a court order is damage enough.

“It would be the final blow to the understanding of Israel as a country with rule of law — with huge economic and political consequences,” he said.

An untested road to crisis

According to legal scholars, the applicable theory behind invalidating legislation that sets out a constitutional principle remains untested.

Hypothesized as an “unconstitutional constitutional amendment,” the principle means that the court finds a piece of a Basic Law in violation of other Basic Laws or, critically, in violation of the very essence of the state as laid out in other documents, perhaps including the Declaration of Independence.

Supreme Court Chief of Justice Ester Hayut speaks during a ceremony for newly graduated lawyers at the Jerusalem congress center on January 31, 2023. (Oren Ben Hakoon/Flash90)

In 2018, Supreme Court President Esther Hayut wrote that the one “exceedingly narrow” scenario in which the court could apply this principle — despite Israel not having a constitution — is if a Basic Law attacked “Israel’s essence as a Jewish and democratic state.”

Hayut has been vocal in opposing the coalition’s overhaul package, saying in January that it would deliver “a fatal blow to Israeli democracy.”

If the court were to find that Basic Law amendments constraining its own power were unconstitutional constitutional amendments, it would be a similarly momentous shift in Israeli jurisprudence.

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