Yossi Mekelberg
Inevitably, there is a sense among most Israelis that life and politics could be, and probably should be, divided between before and after Oct. 7, and what preceded this fateful day is diminished by the war and sheer trauma that ensued.
However, the ruling by the High Court of Justice last week to nullify a law passed by the Knesset in July of eliminating the reasonableness clause to a Basic Law, followed by another ruling that postpones a further amendment that seeks to remove the power of the attorney general to declare a prime minister unfit for office — two major components in the government’s so-called judicial overhaul — were a stark reminder that Israel is not only deeply engaged in a war with Hamas in Gaza, and increasingly with Hezbollah in Lebanon, but for well over a year has been in a battle to save its democratic system.
Due to the importance of the reasonableness clause, a full 15-justice panel heard this case, and it passed its ruling with the slimmest of majorities, with eight justices ruling to strike down the law and seven to uphold it. But this tells only half the story, as 13 of them also wrote in their opinions that the court did have the authority to review Basic Laws and amendments made to them by the Knesset.
Both decisions have demarcated the specific and more general fault lines between the executive branch, supported by the legislative branch, and the judiciary.
In the first place, the court struck down an amendment that would have limited its ability to review the “reasonableness” of government decisions, or in other words, to judge whether actions of the executive branch meet the standard of reasonability.
Without this power, the government would have been granted by law a free hand when it comes to appointments to public positions, including of those who have been charged or even convicted of corruption, leaving the judiciary powerless to overturn such decisions or nullify any other policies that serve those in power and not the country.
If any government in Israeli history has made the case for the importance of the reasonableness standard to be overseen by the judiciary, it is this sixth government of Prime Minister Benjamin Netanyahu.
From its very early days, it has been trying to allow a Knesset member already convicted of corruption while serving as a Cabinet member, and later of tax fraud, to be reappointed as a minister in charge of two major government departments, an appointment that the High Court of Justice ruled, justifiably, to be “unreasonable in the extreme.”
Israel has an unusual system of governance, much of it due to the lack of a written constitution, which can leave a government tempted to take advantage and act in self-interest instead of the interests of the people.
At the same time, it strengthens the perception of the judiciary as the gatekeepers on behalf of the nation, especially in a parliamentary system whereby the majority among the legislature is the one that forms the government, and hence can be reluctant to provide the necessary oversight of the executive’s (mis)behavior, of fulfilling the missing piece in the democratic checks-and-balances system, and preventing the executive from handing itself limitless power with impunity.
The argument usually heard from members of the current coalition is that judges are appointed, unlike politicians who are elected, hence the courts should have no legal or moral right to change legislative and other decisions taken by elected officials.
Needless to say, this is sheer populist demagoguery in an attempt to silence the judiciary with its assigned task of making a learned, legal decision on whether the legislature and executive are operating within the boundaries set by the law and democratic principles.
Despite its lack of a written constitution, Israel has enacted Basic Laws, which have some constitutional standing and qualities, with the intention that should all of them be fulfilled they would become the country’s constitution.
However, due to political complications as a result of fragmentation within the political system — much of it a reflection of that within Israeli society — the work on a constitution has never been completed, so it has been left to the High Court of Justice to provide the legal interpretations that all citizens, including and especially government officials, should abide by.
Of equal if not more importance is the overwhelming support for the judges’ decision by an overwhelming majority that it is in the court’s authority to exercise a judicial review of Israel’s Basic Laws due to their constitutional status in Israeli jurisprudence, and if necessary intervene in exceptional cases and prevent the abuse of power by either the Knesset or the government.
The reaction from the political system, civil society and the media to the court’s decision was almost predictable, although those who led the protests and the campaign against the unscrupulous and aggressive judicial coup by the Netanyahu government were distinctively more explicit in expressing their satisfaction at having forestalled, at least for now, the country’s march toward a Netanyahu dictatorship; while those who promoted it were less vociferous in their protest against it, especially the main protagonists among them.
Much of the more subdued reaction of the chief culprits of the assault on the democratic system can be attributed to the fact that they are the very same people who are deeply implicated in the failure to prevent the disastrous attack by Hamas on Oct. 7 through their polarizing of the nation, not to mention being behind the failed strategy toward the Palestinian faction that left Israel exposed to external threats.
That has not stopped some of the more extreme elements within the coalition from threatening that when the war is won (whatever that means), they will then return with vigor and continue to undermine the judiciary.
The battle to save Israeli democracy is not over, and preserving the separation of powers and the checks-and-balances mechanisms is an essential and necessary condition, but not a sufficient one.
Israel needs to rid itself, through a general election, of the current anti-democratic government, and then produce a written, liberal-democratic constitution. Moreover, its people and leaders should internalize that there can be no liberal democracy as long as there is an occupation and violation of the rights of an entire nation, which means that not all its citizens are equal in the eyes of the law.
For too long, anti-democratic elements in Israel have been allowed to dominate the political and social discourse. Without its independent judiciary, Israel’s democracy is in existential danger, and it should be praised for reasserting itself in the face of the vicious attacks by democratically elected anti-democrats.
