BICOM

The issues addressed in today Morning Brief are explored in detail in our recent podcast ‘Judicial Reform – What Comes Next? (Part One)’ with Professor Yuval Shany. Listen here.

What happened: The full panel of 15 High Court Judges sat for the first time in Israel’s history for a hearing on the legality of an amendment to Basic Law: The Judiciary that cancels the court’s ability to use reasonability as grounds for striking down government decisions and appointments.

• The hearing was broadcast live on Israeli media and lasted over 13 hours.
• With the court contemplating whether to strike down the amendment, early in the proceedings President of Court Esther Hayut noted that only a “mortal blow” to democracy could justify cancelling a Basic Law .
• The government was represented by Ilan Bombach, a private lawyer, as the Attorney General Gali Baharav-Miara refused to defend the government.
• Bombach argued that the court has no legal or constitutional basis to review Basic Laws.
• Similarly, MK Simcha Rothman (Religious Zionism), Chair of the Knesset’s Constitution, Law and Justice Committee claimed, “throughout history, those counting on oligarchic elites to preserve their rights have found they mostly preserve their own rights.”
• Rothman’s challenged the judges’ ability to be objective based on, “prestige, your status and your authorities.”
• Hayut retorted, “We are not concerned with our prestige but with the vital interests of the public.”
• In one of the most notable exchanges Bombach sought to downplay the significance of Israel’s 1948 Declaration of Independence. Bombach argued, “Because 37 people were authorised to sign the hasty Declaration of Independence, which was still being drafted until the last moment, this should obligate people who came later?” claiming it was “unthinkable” to say the declaration must “bind all future generations.”
• At another point Justice Amit warned that historically, “democracy dies in a series of small steps.”

Context: The cancelling of the reasonability standard is the first of the government’s planned judicial reforms to actually be passed into law.

• There is currently no distinction between the way the Knesset passes a Basic Law and a regular law (both require only a basic majority), leaving the special status of Basic Laws open to different interpretations and legal ambiguity.
• The reformers have argued that Basic Laws, having quasi-constitutional status, should not be subject to judicial review. During the proceedings the Likud Party issued a statement, “The most important element in democracy is that the people are sovereign. The Knesset receives its authority from the people. The government receives its authority from the Knesset. The court receives its authority from the Basic Laws enacted by the Knesset.”
• It further warned, “If the court can cancel Basic Laws, it makes itself sovereign instead of the people. This extreme step will undermine the foundation of democracy. This is a red line that must not be crossed.”
• There is growing concern over whether the government will respect the court’s rulings. If it refuses to do so this could provoke a constitutional crisis, with state bodies forced into a position of having to choose between honouring the government or the court.
• Based on recent statements, the government appears split with hardliners like Minister Smotrich threatening the court, whist Defence Minister Gallant said he would respect any ruling. Prime Minister Netanyahu, who in the past has back the court’s authority, has yet to speak out unequivocally.
• Meanwhile, the leader of National Unity Party MK Benny Gantz noted the deliberations had been “in depth and dignified,” adding that “the debate showed us how critical effective judicial oversight is to the decisions made by public representatives.”
• In parallel, efforts are ongoing under the auspices of President Herzog to defuse the situation and reach a compromise.

Looking ahead: At the end of the hearing Court President Hayut gave the government 21 days to present its final arguments in writing.

• Next week the Court will hear separate petitions demanding Justice Minister Levin convene the Judicial Selection Committee, in its current format – something he has so far refused to do, as he seeks the restructuring of the committee.
• The Court is also due to review the Incapacitation Law, that shields Netanyahu from accusations of a conflict of interest if he were to engage in the issues of the judicial reform whilst his own trial is ongoing.