The High Court of Justice’s recent ruling to nullify a law eliminating the reasonableness clause to a Basic Law and postpone an amendment to remove the attorney general’s power to declare a prime minister unfit for office, two major components of Israel’s judicial overhaul, are a stark reminder of the ongoing struggle to save its democratic system. The 15-justice panel passed the ruling with the slimmest majority, with eight justices ruling to strike down the law and seven to uphold it. However, 13 of them also wrote in their opinions that the court did have the authority to review Basic Laws and amendments made by the Knesset.
Both decisions have highlighted the overlapping responsibilities of the executive, legislative, and judiciary branches. The court struck down an amendment that would have limited its ability to review the “reasonableness” of government decisions, or judge whether actions of the executive branch meet the standard of reasonability. Without this power, the government would have been granted a free hand when it comes to appointments to public positions, including those charged or convicted of corruption.
This sixth government of Prime Minister Benjamin Netanyahu has made the case for the importance of the reasonableness standard to be overseen by the judiciary. From its very early days, the government has been trying to allow a Knesset member convicted of corruption to be reappointed as a minister in charge of two major government departments. Israel’s unusual system of governance, much of it due to the lack of a written constitution, can leave a government tempted to act in self-interest instead of the interests of the people.
The judiciary in Israel is seen as a gatekeeper for the nation, particularly in a parliamentary system where the majority of the legislature forms the government. This can be a hindrance to oversight of the executive’s actions, as it can lead to limitless power. The current coalition argues that judges are appointed, unlike elected politicians, and therefore have no legal or moral right to change legislative decisions. This is a form of populist demagoguery aimed at silence the judiciary’s role in making legal decisions.
Despite Israel’s lack of a written constitution, it has enacted Basic Laws with constitutional standing, with the intention of making them the country’s constitution. However, political complications and fragmentation within the political system have left the High Court of Justice to provide legal interpretations for citizens, including government officials. The majority of the judiciary supports the judges’ decision, stating that it is in their authority to review Israel’s Basic Laws and intervene in exceptional cases to prevent power abuse.
The reaction from the political system, civil society, and media to the court’s decision was predictable, with those who led protests and campaigns against the Netanyahu government being more explicit in their satisfaction with the decision.
The Israeli democratic system has been severely impacted by the actions of the chief culprits, who are deeply implicated in the failure to prevent the Hamas attack and the failed strategy towards the Palestinian faction. However, some extreme elements within the coalition threaten to return and undermine the judiciary after the war. The battle to save Israeli democracy is not over, and preserving the separation of powers and checks-and-balances mechanisms is essential. Israel needs to rid itself of the current anti-democratic government through a general election and produce a written, liberal-democratic constitution.
It is crucial for Israelis and leaders to recognize that liberal democracy cannot exist without an occupation and violation of the rights of the entire nation, ensuring not all citizens are equal in the eyes of the law. Without an independent judiciary, Israel’s democracy is in existential danger, and it should be praised for reasserting itself in the face of the attacks by democratically elected anti-democrats.
