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Netanyahu judicial overhaul faces showdown in Israeli Supreme Court

Israel's Supreme Court will hear petitions to quash an amendment by Prime Minister Netanyahu's governing coalition that curbs its very own power.

3 minute read
People take part in a demonstration against Israeli Prime Minister Benjamin Netanyahu and his nationalist coalition government's judicial overhaul, in Tel Aviv, Israel, Sept 9. Photo: Reuters
People take part in a demonstration against Israeli Prime Minister Benjamin Netanyahu and his nationalist coalition government's judicial overhaul, in Tel Aviv, Israel, Sept 9. Photo: Reuters

Israel's Supreme Court will hear petitions on Tuesday to quash an amendment by Prime Minister Benjamin Netanyahu's governing coalition that curbs its very own power, in a historic session which has already inflamed the country's judicial crisis.

It is one in a series of appeals that the court will hear throughout September and which go straight to the core of the judicial row that has rocked the country for months, pitting the bench against a government that says it is too interventionist.

Reasonableness clause

On Sept 12 for the first time in Israeli history, the entire 15-judge Supreme Court bench will convene to hear appeals by watchdog groups and lawmakers against a Basic Law amendment that curbs some of its own power. The legislation, ratified on July 24, removes one, but not all, of the tools the court has for voiding government and cabinet ministers' decisions or appointments. That tool empowers the court to rule an action is unreasonable. The legislation caused an uproar in Israel with opponents saying it violates Israel's democratic checks and balances and invites abuses of power. Netanyahu says it is a minor fix meant to restore balance between the branches of government by reining in a court that has become over-reaching.

Constitutional quagmire

The reasonableness amendment is part of Israel's so-called "Basic Laws" that the court so far has refrained from quashing. Striking down a basic law or an amendment to one has been described in Israel as the Supreme Court using a legal doomsday weapon. As Israel has no written constitution, it relies instead on these Basic Laws which enshrine some rights and liberties and establish rules of governance. Their stature exceeds those of regular laws. But Basic Laws can easily be added or amended by a majority in Israel's unicameral parliament, the Knesset, which is largely dominated by coalition governments. For this reason, some legal experts say judicial oversight over Basic Laws is important for preventing abuses of power even if the precise scope of judicial review is ambiguous.

What Netanyahu says

When asked whether he would abide by a court ruling that quashes the new legislation, Netanyahu has not given the clearest answer, saying that Israeli governments have always respected court rulings, and that the court has always respected the basic laws. In its legal response ahead of Tuesday's hearing, the government argued that the Supreme Court does not have legal authority to review basic laws. Its intervention would breach separation of powers and the rule of law by violating the legislature's authority, the government said, which could lead to anarchy. The court, on its part, has laid some legal groundwork for such judicial review in what it would deem extreme cases.

What's next?

The judges' ruling could come in weeks or even months. They have more options than just upholding the new legislation or striking it down. The bench could quash part of the law, delay its coming into effect until after the next parliamentary election or find fault in the relatively rushed legislation process and send it back to parliament to fix. Meanwhile, more volatile appeals are scheduled.

Judges panel

On Sept 19 the court will hear a request to compel Justice Minister Yariv Levin to convene the committee which selects Israel's judges. The panel has been at the heart of the battle over the judiciary since January when Levin announced the judicial overhaul. His proposal included a change to the makeup of the committee that would give the governing coalition decisive sway in picking the judges. A bill to that effect was promoted in parliament but has not yet been ratified. Meanwhile, Levin, who wants conservative judges appointed to a bench he says is too left-leaning and elitist, has held off on convening the committee. As its fate remains unclear, bench vacancies are not being filled. From mid-October those vacancies will include the chief justice and another Supreme Court justice.

Incapacity amendment

On Sept 28 the court will hear challenges to an amendment to a "basic law" that limits conditions for a prime minister to be deemed unfit, or incapacitated, and removed from office. The attorney general has said that Israel's parliament abused its authority by personally tailoring the law to suit Netanyahu, who is on trial for corruption he denies and that it should therefore be quashed. The law's proponents say it is meant to safeguard any democratically elected leader from a wrongful ouster.