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Unprecedented ruling brings angry right-wing calls to curtail High Court

Knesset speaker accuses justices of a ‘coup,’ after they criticize last year’s constitutional amendment that delayed elections despite Netanyahu’s refusal to pass a state budget

A High Court of Justice hearing at the Supreme Court in Jerusalem, on May 4, 2020. (Abir Sultan/Pool/AFP)
A High Court of Justice hearing at the Supreme Court in Jerusalem, on May 4, 2020. (Abir Sultan/Pool/AFP)

Right-wing politicians excoriated the High Court of Justice on Sunday after it issued a ruling that seemed to claim the authority to overturn quasi-constitutional Basic Laws.

The 6-3 ruling dubbed last year’s legislation that allowed Prime Minister Benjamin Netanyahu to continue funding state agencies without passing a state budget a “misuse of the Knesset’s authority.”

The amendment was a change to the Basic Law: State Economy that upped the interim budget for 2020 by some NIS 11 billion ($3.4 billion) to help the government deal with the costs of the coronavirus pandemic.

But the budget change had to be passed as a constitutional amendment because the government had refused to pass a state budget, and spending was limited by the Basic Laws to the previous year’s approved budget — a figure that fell far short of the government’s spending needs during the pandemic.

The government, in turn, had failed to pass a new budget law for 2020 because failure to pass a budget law was the only means left to Prime Minister Benjamin Netanyahu to force snap elections before he had to turn over the prime minister’s chair to Defense Minister Benny Gantz, as per the coalition agreement signed by the two men in May 2020.

The Knesset plenum votes on the state budget for 2017-2018, December 21, 2016. (Yonatan Sindel/Flash90)

In its ruling, the court chastised the Knesset’s willingness to amend Basic Laws for momentary political convenience — but did not overturn last year’s amendments, noting that the funds had already been spent and the fiscal year was long over.

Still, it asserted the right to overturn similar changes in the future.

Right-wing anger

Right-wing politicians, led by Likud’s Knesset Speaker Yariv Levin, took issue with what they characterized as an extra-constitutional “coup” by the justices.

Prime Minister Benjamin Netanyahu (L) addresses the Knesset plenum as Knesset Speaker Yariv Levin looks on, October 19, 2020. (Shmulik Grossman/ Knesset)

“The High Court decision to issue a ‘notice of invalidation’ to a Basic Law is a decision without any authority. It’s shocking. We’re witnessing an insane event in which six people are wrapping themselves in judicial robes in order to carry out a coup,” Levin said.

He vowed to “stand with all my strength against this attempt to cancel our democracy,” and to “defend the stature and authority of the Knesset.”

The amendments in question were “a gimmick that should never have happened,” said Yamina no. 2 MK Ayelet Shaked, a former justice minister. “And still the court overstepped its authority with an outrageous ruling that constitutes one more step on the path to a judicial coup.”

Shaked, who as justice minister oversaw the appointment of some 300 judges, including two of the three dissenting justices, David Mintz and Yosef Elron, noted that the 6-3 divide in the ruling split along liberal-conservative lines, “and proves the need to continue appointing conservative judges who will safeguard the principle of checks and balances.”

New Hope leader Gideon Sa’ar speaks during a Knesset faction meeting on April 26, 2021. (Yonatan Sindel/Flash90)

New Hope leader Gideon Sa’ar said the ruling “clarifies the need to legislate a Basic Law: Legislation,” which would set down the explicit powers of each branch of government to overturn the decisions of the other branches.

“The constitutional rules must be set by the Knesset, as representative of the sovereign [people], and not by the court. And the sooner the better,” he said.

Meanwhile, centrist and left-wing politicians defended the court.

Meretz MK Tamar Zandberg, at a Knesset faction meeting on April 26, 2021. (Yonatan Sindel/Flash90)

“The Knesset speaker’s assault on the High Court is a direct extension of Netanyahu’s assault on all the institutions of government,” charged Yesh Atid leader MK Yair Lapid.

“Yariv Levin is collaborating with the Kahanist wing [of the right] in his wild incitement,” Lapid said, “which bordered on incitement to violence.”

“What’s with all this howling against the High Court?” demanded Meretz MK Tamar Zandberg. “You don’t want the High Court to overturn laws? Then stop treating them like playdough for the momentary needs of a bribery suspect,” she said, referring to Netanyahu, who is on trial on corruption charges.

A long-running fight

The ruling marked the latest round in a long-running fight between liberals and conservatives over the powers of the High Court and the status of the Basic Laws.

Under Israel’s Basic Laws, a government must pass a state budget for a fiscal year by the end of March; failing to do so, the law stipulates, results in an automatic dissolution of the Knesset and snap elections.

Blue and White chairman Benny Gantz (L) and Prime Minister Benjamin Netanyahu in the Knesset plenum on May 17, 2020, as their new coalition was sworn in. (Knesset)

But Netanyahu refused to allow a budget law to advance throughout 2020, in order to ensure that he could avoid reaching the November 2021 deadline for handing Gantz the premiership.

In the face of Netanyahu’s refusal, the Knesset twice — in March and again in August last year — voted to amend the Basic Laws to allow a one-off delay of that budget deadline, which was ultimately pushed off to late December 2020.

When the final date arrived without a budget agreement, the Knesset refused to legislate another extension, automatically dissolving itself and sending the country to its fourth election in two years. That election was held in March of this year, with results as indecisive as the previous three rounds.

Switching sides

Israel has no formal, explicit constitution, and the standing of its Basic Laws has been a point of contention for decades between liberals and conservatives.

Supreme Court Chief Justice Esther Hayut speaks during High Court of Justice deliberations on petitions against Benjamin Netanyahu being appointed prime minister, on May 3, 2020. (Screen capture)

The latest controversy is an ironic reversal of the usual debate, however. Liberals have long argued that the Basic Laws, especially the 1992 Basic Law: Human Dignity and Liberty, have a constitutional status that supersedes other laws and allows courts to strike down legislation or acts of government that go against their stipulations.

Conservatives, meanwhile, have insisted that the Basic Laws were never meant by their authors to grant the court such sweeping powers to overturn actions by the Knesset or government, and have long questioned whether the Basic Laws amount to a constitution in the first place.

But on Sunday, it was conservatives like Levin, a former deputy head of the Israel Bar Association and longtime advocate for judicial restraint, who argued that the Basic Laws made up the constitutional rules according to which the High Court must decide, and that a High Court decision overruling a Knesset amendment to a Basic Law was thus a politically motivated overstep of the court’s authority.

Meanwhile, as the court signals for the first time that it believes it has the power to challenge lawmakers’ amendments to the Basic Laws, liberals have begun to argue that the Knesset’s fast and loose changes to Basic Laws over the past year have diminished their status.

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