Israel's Supreme Court on Monday struck down Prime Minister Benjamin Netanyahu's first and most moderate judicial reform proposal in a narrow 8-7 decision, again amid an existential war with Hamas terrorists. It risked dividing the country.
Opposition parties and the far-left, including the US State Department-funded Campaign for Quality of Government, celebrated the ruling and warned Prime Minister Benjamin Netanyahu not to resist it. Prime Minister Netanyahu and his coalition government have said they will postpone any response until after the war.
Israel's judiciary is the most powerful in the democratic world and virtually unchecked. Prime Minister Netanyahu and his government won the 2022 election with a majority, partly on promises of judicial reform. Most of the proposed reforms paralleled existing practices in other democracies. Relegated to a minority, leftists have taken to the streets and organized mass protests that they liken to “color revolutions” aimed at ousting, or at least completely neutralizing, Prime Minister Netanyahu.
The government delayed passing the reform bill to allow time for negotiations with the opposition. After talks broke down, Prime Minister Netanyahu banned judges from criticizing laws or government actions on the basis of “reasonableness” (a subjective standard that relies on the judges' own personal opinions), and banned the most unreasonable measures. They tried to pass the reforms step by step, starting with less pleasant proposals.
Prime Minister Netanyahu had hoped to negotiate the remaining reforms, but the Supreme Court intervened and Hamas attacked in October.
There were three issues. The first question is whether the Supreme Court had the jurisdiction to hear this case in the first place. Israel has no formal constitution and no real judicial review. It was only in the 1990s that courts assumed the power to review laws.
In the absence of a constitution, Israel has relied on a number of basic laws that establish its government structure. But these can be amended by a simple majority vote in parliament, or the Knesset, which is how last year's judicial reforms were passed.
The Supreme Court took up this case with enthusiasm and held oral arguments in September before the war. Prime Minister Benjamin Netanyahu and his coalition government said the court did not have the power to override the amendments to the Basic Law, and that it derived its authority from it.
In the end, 13 out of 15 judges agreed It entails the argument that the Supreme Court can override amendments to the Basic Law, and even to the Basic Law that governs the judiciary itself. (Conservative critics say this only emphasizes the need for judicial reform.)
The second issue is judicial reform itself. The court narrowly divided, but in the end, outgoing Chief Justice Esther Hayut decided that “reasonableness” was appropriate given the lack of other checks on legislative and executive powers. It was ruled that.
Part of Hayut's argument is that the reform was only passed by a parliamentary majority in a party-line vote, and while there is no supermajority requirement for amending the Basic Law, it lacks broad political appeal. It was suggested that.
The third issue was whether Israel's Declaration of Independence established Israel's constitutional foundations.of document Although the signatories did not consider themselves to be legislating, it does declare that Israel provides equal rights to all people.
Hayut argued that the Legislature cannot make changes that would change the character of Israel as defined in the Declaration, but again this is a subjective standard and the Declaration contains many There are principles to choose from.
Before the war, a conflict between the legislative and judicial branches and a Supreme Court decision would have created a constitutional crisis. However, the Netanyahu government chose the high road. Time will tell whether voters will reciprocate that sense of duty.
Joel B. Pollack is a senior editor at Breitbart News. Breitbart News Sunday Sunday nights from 7:00 PM to 10:00 PM ET (4:00 PM to 7:00 PM PT) on Sirius XM Patriot. He published his 2021 e-book “The Zionist conspiracy (and how to join it)' has been updated and a new preface has been added. He is also the author of a recently published e-book. Neither Free nor Fair: The 2020 US Presidential Election. He is the recipient of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter @joelpolak.
