Israeli Supreme Court to review law that limits its power, setting up showdown with government

By Ivana Kottasová, Amir Tal and Mick Krever, CNN

(CNN) — Israel’s Supreme Court announced Wednesday that it would hear appeals against a controversial new law that curbs its power, setting up a showdown with the government over Prime Minister Benjamin Netanyahu’s divisive plans to weaken the judiciary.

The court said it would debate the law in September but would not issue an injunction to block it before then.

The new law, which strips the Supreme Court of the ability to reject some government decisions on the basis of the “reasonableness” standard, was the first of the government’s major judicial reforms to be passed by the Israeli parliament, the Knesset.

Netanyahu’s coalition – the most far right in Israeli history – pushed the law through by a narrow margin on Monday with the opposition boycotting the vote, despite months of mass protests and unusually public criticism from the White House.

The court said it would hear challenges from seven groups who are seeking to throw out the law, including the Movement for Quality Government, whose chairman praised the announcement Wednesday.

“We are ready,” Eliad Shraga said in a statement. “We will appear in the Supreme Court to defend Israeli democracy, and we will do everything we can to stop the coup!”

The court’s decision to take up the case brings Israel to the brink of a constitutional crisis, with judges considering whether to strike down legislation that was created to limit their power.

Adam Shinar, associate professor at the Harry Radzyner Law School at Reichman University, told CNN Wednesday’s decision by the court doesn’t change the situation dramatically, because the court is on break in August and would be unlikely to strike down any government decisions based on unreasonableness.

“An injunction wouldn’t be meaningless, but it wouldn’t change much,” he said. “It’s unlikely this reasonableness clause will do a lot of damage between now and September that would be irreversible.”

Shinar said it could be months before the court comes to a decision on the new law.

“You have to give all the parties, the respondents, time to prepare their briefs. So you can’t just say, let’s discuss this next week. Because obviously this is a very big issue, and they have to think hard about it, and there are a lot of parties involved.”

Israel does not have a written constitution and is instead governed by a series of Basic Laws and previous court rulings, including the one that was amended on Monday. These laws were originally enacted by the Knesset with the view that they would form a formal constitution in the future – but that has not happened yet.

The country has no upper chamber of the parliament, but it has a relatively strong Supreme Court. Netanyahu and his supporters argue the court has become too powerful, and that their overhaul would rebalance powers between the judiciary, lawmakers and the government.

But opponents say the Supreme Court is the only check on the power of the government and the Knesset, since the executive and legislative branches are always controlled by the same governing coalition. They argue that the reforms would erode Israeli democracy by granting Netanyahu and his government almost unfettered powers.

The conflict goes far beyond the political class and has caused deep division within Israel, sparking the largest and longest protests in the country’s 75-year history and pitting right-wing and religious groups against more liberal and secular parts of society.

Other parts of the planned overhaul which are yet to be voted on by the Knesset would give Netanyahu’s coalition more control over the appointment of judges, and would remove independent legal advisers from government ministries.

Uncharted territory

The reasonableness standard has allowed Israel’s Supreme Court to strike down government decisions when they are deemed to have been made unfairly and without taking into consideration all relevant factors.

“The court cannot revoke a government decision in cases in which the judges disagree with the government decision; but rather only in cases in which the balance between the various considerations that were made is unreasonable in the extreme,” wrote Yuval Shany of the Israel Democracy Institute earlier this month.

The concept is not unique to Israel – the United Kingdom, Australia and Canada have a similar principle in place – and the court only has only used the power sparingly, according to the Israel Democracy Institute.

The Supreme Court used the standard earlier this year when it ruled that the government’s decision to appoint Aryeh Deri as a cabinet minister was unreasonable because Deri was previously convicted of tax fraud and had said he would retire from public life, forcing Netanyahu to dismiss him.

Shinar said the government could attempt to reinstate Deri. “That was one of the points why the government passed this amendment, was because it didn’t want judicial review over ministerial appointments,” Shinar said.

“The previous time when the court said he can’t be a minister, most of the judges agreed it was on reasonableness grounds. Other judges gave a different reason, but that was in the majority. So right now at least, if they can’t strike it down on reasonableness, it stands to reason that they can reappoint him,” he said.

The Supreme Court has never annulled a Basic Law, though it has previously set a precedent for the possibility of doing so.

In 2021, it declared a law to delay the deadline to pass the state budget an improper use of parliamentary power but stopped short of annulling it, according to the Jerusalem Post. The same year, court president Esther Hayut said the “narrow” circumstances in which a Basic Law could be struck down included cases where a bill “dealt a mortal blow to free and fair elections, core human rights, the separation of powers, the rule of law, and an independent judiciary,” the Times of Israel reported.

While the court’s review of the law may take the tension between the hardline government and the judiciary to a new level, Netanyahu’s government has indicated it will comply with its ruling.

Asked by CNN whether the government would comply with a ruling that struck the law down, Minister of Strategic Affairs Ron Dermer said: “The government will always obey and abide by the rule of law in Israel,” Dermer said. “Because we have in Israel the rule of law. What we don’t have is the rule of judges. We have the rule of law.”

The mass protests that have engulfed Israel since the reforms were first announced in January are unlikely to stop now.

Netanyahu appears determined to keep pressing ahead with the overhaul, while the protesters are equally determined to stop it. The Israel Medical Association went on strike Tuesday in response to the Knesset vote and thousands of military reservists – including more than 1,100 Air Force officers – said even before the bill passed that they would refuse to volunteer for duty if it did.

The government’s plan to push the overhaul through despite the protests has attracted an unusual level of public criticism from some of Israel’s closest allies.

US President Joe Biden had warned Israel’s government against moving ahead with the vote, urging Netanyahu “not to rush this.” After the law was passed on Monday, the White House called it “unfortunate.”

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