Ilan Hulkower

“Keep the charge of the Lord your G-d, walking in G-d’s ways and following G-d’s laws, commandments, rules, and admonitions as recorded in the Teaching of Moses, in order that you may succeed in whatever you undertake and wherever you turn.”

1 Kings 2:3

When the United States Supreme Court ruled in favor of Native Americans retaining their sovereignty in Georgia in 1832, due to constitutional provisions, President Andrew Jackson was said to have remarked that Chief Justice “John Marshall has made his decision, now let him enforce it.” Now, Israel may have a similar moment with a possible forthcoming clash between the judiciary and the other branches of government. The Israeli High Court has elected to take a full 15 panel hearing in September on the lawfulness of recently passed Basic Law amendments that were a part of a much-needed judicial reform package. At issue may be the question of whether the High Court can nullify (quasi) constitutional laws that the court itself used to justify their controversial unilateral declaration back in 1995 that the country has a constitution.

The Basic Laws in question concern a watered down amendment that restricted (but did not outright abolish) the court’s ability to use the reasonableness standard to strike down governmental decisions. Also before the court is another Basic Law amendment to prevent the High Court or the Attorney General from ordering the removal of a prime minister from office. The anti-reform petitioners,  led by an organization funded in part by the United States State Department, argue that the judicial reform package would be damaging to Israeli democracy and amounts to a "judicial coup".

While many within Israel’s legal scholardom (which is largely opposed to the reforms) think that it unlikely the High Court will outright nullify the new amendments; it is far from certain whether the High Court will follow that conventional wisdom. There are arguments that the President of the Supreme Court, Esther Hayut, is eyeing a radical ruling. Those set on this perspective point out that she took this case in the first instance as opposed to dismissing it; she cut short her vacation as a consequence of this decision; she is reaching the end of her time on the bench, which is traditionally the time when justices make controversial rulings; and she expressed personal displeasure over the content of the reforms that are now litigated before her.

It appears that various elements within both the Israeli ruling and opposition coalitions believe that there is a serious enough chance that the High Court may take a more radical path in its eventual verdict. Already, Speaker of the Knesset Amir Ohana commented that:

…the judiciary does not have the authority to discuss the question of the validity, applicability and content of the fundamental [Basic] laws…in the absence of any legal authorization, and for the sake of democracy, the court must respect the Knesset's decisions.

Nor is Ohana alone in this sentiment as Prime Minister Benjamin Netanyahu gave utterance to similar remarks. The head of the opposition, Yair Lapid, said that “a government that doesn’t obey the court, that doesn’t obey the law, is an illegal government” and portrayed such a step by the ruling coalition as demonstrating their lawlessness and dictatorial ambitions.

Whose analysis would be correct in a scenario where the High Court struck down these revisions to the Basic Laws on the grounds of their substance? By the High Court’s very own 1995 ruling, where it proclaimed Israel had a constitution to begin with, the unilateral power to pass Basic Law resides within the parliament.  In Justice Shamgar’s concurrence with the decision, he argued that the Knesset has “unlimited sovereignty” and only the Knesset can have the “power to limit itself.” Shamgar wrote that “a Basic Law should be changed only by another Basic Law'' through the Knesset.

Israeli Supreme Court Building (2009)| Photo taken by israeltourism| Licensed under CCA 2.0

The then president of the Supreme Court Aharon Barak, who wrote the primary opinion and therefore is the primary architect of Israel’s constitutional revolution, argued that “[t]he Knesset’s power to adopt a constitution derives from its constituent power… Israeli law currently recognizes the power of the Knesset to adopt a constitution.” He too acknowledged:

Due to the fact that a Basic Law is of a higher normative level, it can only be changed by another Basic Law. In wielding its constituent power, the Knesset can limit its authority to change Basic laws, and thus create “rigidity” of constitutional provisions. The Knesset’s power to limit itself and thus entrench the provisions of a Basic Law derives from its authority to adopt a formal constitution.

Aharon Barak would later elaborate about a scenario that is remarkably like the one currently facing Israel. He said in an interview given in 2003 that “[i]f a court rejects a law on the grounds that it is unconstitutional, the Knesset can prevail over this rejection by turning the rejected law into a fundamental law [i.e. Basic Law].” This is an admission that such Basic Laws are ultimately unreviewable in substance by the courts given that they undergird his constitutional theory.

The only major dissenting opinion in the 1995 ruling was offered by Justice Cheshin who argued that only the first Knesset had such ability to create a constitution as Barak declared it and that since it did not that this power had expired. Now, Cheshin maintained that only through a plebiscite can such a constitution be affirmed. He observed that despite Barak’s supposed stance that the two Basic Laws passed by the Knesset had justified the High Court’s presumption of a constitution, such an intent by the legislative body when passing those laws was lacking. (Other scholars agreed with Cheshin that the Knesset did not think it was passing such groundbreaking pieces of legislation.) Justice Cheshin explained that “ [t]he day of giving a constitution is a day of pomp and circumstance. Everyone knows that the authorized  body is about to enact a constitution, for behold a constitution is about to be given, and behold a constitution is now given.”Yet, he argued that the formal giving (as well as the authority to give) of such a modern constitution by the Knesset was not self-evident.

Based on the majority opinion alone, the High Court is excluded from ruling about the unconstitutionality of Basic Laws. None of the three legal theories highlighted by these judges in their ruling permit the court to have such broad and sweeping powers. A High Court acting contrary and taking the precarious position that it alone can determine the constitutionality of constitutional changes (to a potentially non-existent constitution) would remove any real remaining check that the Knesset holds over the court. It would dispel any notion that the court was restrained from its inordinately activist past that not too long ago many parties across the political spectrum sought to curtail. Returning to the opening analogy of the showdown between President Andrew Jackson and the American Supreme Court, ironically the Israeli Supreme Court now fills the role of Jackson in their recalcitrance toward the law if they deliver such a verdict.

Given that democratic states rely on a system of checks and balances where the general authority of each branch of government is defined, any ruling that gives the court authority over the substance of the Basic Laws would be shredding all past legal theories and any sense of balance.  It would therefore not be a lawless government but a lawless court that would emerge. Such a ruling would be akin to the Knesset saying that they will now judge legal cases. For their part, members of the government who decry the 1995 ruling and side more with Cheshin’s interpretation like Member of Knesset Simcha Rothman have made it clear that they are not out to create a constitution of their own.

The opposition can decry the criminal nature of the government all it wants and make all the insinuations that such corruption starts from the top with the “Crime Minister” Netanyahu. (Such accusations are increasingly falling flat in their substance as prosecutorial misconduct and serious problems with the legal cases against Netanyahu comes increasingly into the public spotlight.)The opposition has no effective response over what the legal grounds would be for the Supreme Court to rule in such a lopsided and structurally chaotic manner. There is, however, a way forward for the government and the opposition. They have an opportunity to put down firmly in writing via Basic Law (or potentially in an outright constitution) the structural rules of the game of the Israeli system of government and a clearer bill of rights for the individual. They could, for instance, come to a consensus that future legislation on Basic Laws requires the agreement of 70-90 Members of the Knesset and that such legislation can only be passed in open sessions of parliament.

After all, it was not too long ago that an Israeli government led by a centrist party tried its own hand at reforming the courts. In 2007, Prime Minister Ehud Olmert appointed Daniel Friedmann as Minister of Justice to shepherd in such changes. Only one item of the reform proposal managed to pass - the one limiting the term of the President of the High Court to seven years. Olmert then had to resign over a corruption probe and departed the Prime Minister’s office in 2009, an act that effectively ended Friedmann’s tenure.

Ultimately, it is for the Israelis to decide what content or direction, if any, the reforms should take. Polls, for what they are worth, constantly reveal that the public wants both sides of the political aisle to compromise on the judicial reform package. This is not to argue that the politicians will manage to reach a compromise. There are concerns that the protests over the judicial reform package are used by many activists as a cloak for their ambitions to bring down a government they do not like.  It certainly does not help that foreign interests have been strategically bankrolling some of the organizations behind the protest movement even as the government has watered down its proposals.

For many observers it may seem strange that a people who were foundational to the notion of a divine covenant, and are widely known as the People of the Book, cannot agree on a formal constitution to bind their modern polity. This is made all the more awkward given that ancient Israel did have a written constitution.  Indeed, it was Justice Cheshin who cited the Bible as evidence when he remarked:

[T]he Jewish people became obligated to its first constitution [on Mt. Sinai]. The people were first commanded to purify themselves in anticipation of receiving the constitution…In the past, it was God’s finger that engraved the constitution in stone. In our day it is man’s hand that writes, and the text is in blood and fire and columns of smoke, and if not so, then in fire and columns of smoke, and if not that, then in columns of smoke.

Similarly, this essay began with a verse from the book of Kings where King David is exhorting his son from his deathbed on the necessity of adhering to the constitution of their forefathers. It remains to be seen whether the High Court will follow such sage advice. It was after all the failure by the High Court to limit itself in the first place that landed the country in the current predicament.

David's Dying Charge To Solomon (1643)| Painted by Ferdinand Bol