Israeli Supreme Court’s historic verdict against Netanyahu’s judicial overhaul law | Explained

The story so far: Israel’s Supreme Court on January 1 struck down a law limiting its own powers — a momentous step that threatens to reopen the fissures in Israeli society that preceded the country’s ongoing war against Hamas. The controversial legislation passed by Israeli lawmakers on July 24, 2023 prevents judges from striking down government decisions on the ground that they are ‘unreasonable.’

The Court’s 8-7 ruling for the first time struck down an amendment to the country’s quasi-constitutional “Basic Laws” by underscoring that it would deal a “severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state.” The revoked law was part of Prime Minister Benjamin Netanyahu’s divisive judicial overhaul plan that sparked months of mass protests and triggered one of the deepest political upheavals in Israel’s 75 years. Thousands of Israeli army reservists, who constitute the backbone of the military, also threatened to stop reporting for service as a mark of protest. However, they subsequently set aside the vow with the onset of war.

The decision, however, did not come as a total surprise — a draft of the ruling was leaked to the media during the last week of December. Reacting to the leak, Minister of Justice Yariv Levin claimed that the “citizens of Israel expect the Supreme Court not to publish during a war a ruling that is controversial even among its judges.” Echoing similar sentiments, the speaker of the Knesset, Amir Ohana, added that “a time of war is certainly not the time to establish a first precedent of its kind in the history of the country.”

The timing of the verdict was also crucial as a delay of a few weeks might have produced a different outcome. The recent retirement of two justices, Chief Justice Esther Hayut and Justice Justice Anat Baron, imposed a deadline of mid-January to pronounce the ruling, after which they would have been ineligible to participate in it.

“It’s a small and fragile majority. Two of those justices are no longer presiding in the court — and today’s court would likely have a majority take the opposite view,” law professor Yedidia Z. Stern, who was involved in talks to broker a compromise on the judicial overhaul, told a news portal.

The ‘reasonableness’ doctrine

In the absence of a written constitution, the country’s Basic Laws serve as an informal constitution, governing core constitutional ethos such as the creation and role of state institutions, relations between state authorities, and the protection of some civil rights.

The power to review the legality or ‘reasonability’ of laws is analogous to the power of judicial review vested with Indian courts. There is no law defining judicial review powers; the grounds for judicial intervention in administrative affairs have been promulgated through court rulings.

One such legal standard is the ‘reasonableness doctrine’ or the standard of extreme unreasonableness, derived from the Wednesbury unreasonableness principle in English common law. A decision is deemed unreasonable if a court rules that it was made without considering all relevant factors or without giving relevant weight to each factor, or by giving irrelevant factors too much weight— even if they do not violate any particular law or contradict other administrative rulings. Notably, the judiciary cannot revoke government decisions simply because they disagree with them. Under the doctrine, such revocation is permissible only in cases in which the balance between the various considerations that were made is unreasonable to an extreme.

Explained | What is the ‘reasonableness’ doctrine at the heart of Israel’s judicial overhaul?

In January last year, the Supreme Court invoked this doctrine and ordered Prime Minister Netanyahu to dismiss his key ally, Shas leader Aryeh Deri from his cabinet, on the grounds that his recent criminal conviction for tax offenses, and a resultant suspended jail sentence which was yet to expire, made his appointment ‘unreasonable in the extreme.’ This prompted the government to set in motion a plan to limit judicial review over executive actions.

What does the verdict say?

In a majority ruling (supported by twelve of the fifteen justices), the Court held that it has the power to judicially review Basic Laws and interfere in exceptional cases where the Knesset exceeds its constituent powers. In addition, eight of the justices struck down the amendment to the Basic Law: The Judiciary through which the Knesset proposed to revoke judicial review of the reasonableness of executive decisions. The seven dissenting judges, however, saw overreach in the decision, saying that the doctrine of reasonableness “undermines basic democratic principles including the separation of powers.”

The majority, led by departing Chief Justice Esther Hayut, underscored that the reasonableness standard was a crucial tool to protect against arbitrary government overreach, particularly in Israel, which lacks a formal constitution. She underscored that the newly enacted law “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” which constitutes “a severe blow to two of the most explicit characteristics of Israel as a democratic state.”

While cautioning about the extreme ease with which a Basic Law can be amended (with a simple majority in the Knesset), the Chief Justice asserted that judicial review is critical in “defending the individual and the public interest.”

Revoking the doctrine “harms several cornerstones of jurisprudence and democracy: the rule of law, the right of due process, the separation of powers,” said Justice Amit Yitzhak Amit, another member of the court’s liberal wing. He pointed out that “given the heavy democratic deficit in Israel,” such a revocation has much “greater weight here than in other countries.”

Although Justice Alex Stein, a conservative judge, concurred with the majority that the Court had the right to curb the unbridled powers of the Knesset to pass Basic Laws, he emphasised that it was not obligated to strike down the impugned law. He added that revocation of the doctrine “violates no constitutional norm.”

In an opinion for the minority, Justice David Mintz underscored that judicial review of even regular legislation was “not based on strong foundations” and as such there was “for sure no authority allowing for the court to deliberate on the validity of a Basic Law” or to strike one down.

“Annulling a Basic Law based on an amorphous doctrine and an undefined formula carries a heavy price from a democratic point of view, certainly when it comes to an issue about which the Court itself is in an ‘institutional conflict of interest,’” he wrote.

Justice Yael Wilner observed that the doctrine of “existing interpretation” should be used to interpret the law more narrowly and allow for review only in cases where an administrative decision is extremely unreasonable. Pointing out that there exist alternative grounds for judicial review such as proportionality, arbitrariness, and discrimination, she asserted that the amendment “does not seriously harm the democratic identity of the State of Israel.”

How have Israeli politicians reacted to the ruling?

Prime Minister Benjamin Netanyahu’s Likud party said that the Supreme Court’s decision was “in opposition to the nation’s desire for unity, especially in a time of war.” They slammed the judges for ruling on the issue when Israeli soldiers are “fighting and endangering themselves in battle.”

Israel’s justice minister and architect of the law Yariv Levin accused the judges of “taking into their hands all the authorities that are supposed to be divided between the three branches of government in a democracy.” He added that the ruling was “the opposite of the spirit of unity required these days for the success of our fighters on the front.”

However, opposition leader Yair Lapid welcomed the verdict and said on social media platform X that the apex court had “faithfully fulfilled its role in protecting the citizens of Israel.”

“If the Israeli government again starts the quarrel over the Supreme Court then they have learned nothing,” he said. “They didn’t learn anything on October 7, they didn’t learn anything from 87 days of war for our home.”

Benny Gantz, a member of Israel’s war cabinet, said that the Court’s decision “must be respected” and political disputes postponed until after the war. Although initially opposed to the overhaul, he subsequently joined an emergency wartime unity government with Mr. Netanyahu.

Shikma Bressler, one of the organisers involved in last year’s large-scale protests against the law also hailed the Court’s ruling, saying in a video statement that the top Court had for the moment removed “the sword of dictatorship from around our necks”.

Editorial |Blow to Netanyahu: On Israeli Supreme Court’s verdict and limiting the judiciary’s powers

What happens next?

Prime Minister Netanyahu has so far not issued any personal response to the ruling and had repeatedly refused to state whether he would respect the Court’s decision when asked in the months leading up to the pronouncement. Justice Minister Yariv Levin, however, said that the ruling would not “stay our hand,” indicating a potential standoff between the right-wing government and the judiciary.

However, considering the ongoing war with Hamas and the need to maintain national unity, any immediate countermove against the decision seems unlikely. Across the Israeli political divide, both proponents and opponents of Mr. Netanyahu’s judicial overhaul plan have stressed the need to avoid any domestic turmoil.

In normal times, the decision may have led to a constitutional crisis or worse. “If we didn’t have the (Hamas) war, we would have had an internal war and we’ve avoided that,” Reuven Hazan, professor of political science at the Hebrew University of Jerusalem, told CNN.

“But this precedential verdict also raises another and no less critical aspect: the importance, after the war, of reinforcing the constitutional rules of the game, placing checks and balances on political power, and better defining the relations between the branches of the state,” wrote Suzie Navot, an expert in constitutional law and vice president of the Israel Democracy Institute, an independent research group.