Neither coalition nor High Court respects Basic Laws. Urgently needed: A constitution

Nine months of fevered political and legal wrangling have come to a head. For the first time in its history, the High Court is sitting in judgment of a constitutional Basic Law, the so-called “reasonableness law,” the only part of the government’s judicial overhaul legislation that has actually passed into law.

The reasonableness law is an amendment to the Basic Law: The Judiciary passed by the Knesset in July that curtails the High Court’s ability to rule on the “reasonableness” of government actions. The court, that is, will spend the coming weeks ruling on the constitutionality of a constitutional limit being placed upon it.

No wonder many observers expect a “constitutional crisis.” Whether or not a compromise on rewriting the reasonableness law is hammered out in the Knesset, the larger crisis will remain. If the politicians reach a compromise that still clips the court’s wings, would the court abide by it? And if the court strikes down the law altogether, as many expect, will the Netanyahu government acquiesce?

On Tuesday morning, before the court hearing, Justice Minister Yariv Levin railed against the very idea of the court ruling on its own powers, something it did “with complete lack of authority” and which was itself “a mortal blow to democracy and the status of the Knesset.”

Yet even if the crisis is averted in this particular case, another High Court decision looms over a March amendment to the Basic Laws that changed the conditions under which prime ministers can be suspended to make it harder to oust Netanyahu from office over his corruption trial. Even if Netanyahu accepts the court’s striking down of the reasonableness law, if only to avoid a resurgence of mass protests, it’s difficult to imagine him accepting a ruling that makes him vulnerable to being ousted him from power.

It’s hard to exaggerate the importance of this moment.

It comes at the tail end of nine disastrous months for the government after right-wing leaders and activists led by Justice Minister Levin decided to seize the opportunity created by the advent of this new rightist government to force a radical version of judicial reform down the country’s throat. The speed with which they made the attempt, the torrent of illiberal statements and bills that accompanied it from various coalition members, the refusal to seriously explain or negotiate for several weeks and months — it all cost the government the public trust it needed to actually pass any meaningful reform into law.

No fundamental change to the judiciary or any other part of Israel’s constitutional order is possible without basic public trust in the reformers’ intentions. That gargantuan miscalculation by Levin and his allies has caused the very opposite of their intentions.

On Tuesday, as the court explicitly took up the question of the constitutionality of a Basic Law, it’s fair to say that the right’s disastrously ham-fisted effort to clip the judges’ wings has ended in a dramatic expansion of the court’s powers. The court is grappling with was supposed to be its moment of vulnerability amid higher levels of public trust than the politicians trying to weaken it, and with a greater willingness to assert itself than it had before.

Many liberals once worried about the court’s powers; today, many liberals are so frightened by what they’ve seen in this government over the past nine months that any concern they may harbor regarding the court’s powers seems the least urgent of the country’s governance problems.

If the court’s ruling on reasonableness does in fact trigger a constitutional crisis, the government, not the court, will likely lose that clash

And that shift has dramatic consequences for the government: If the court’s ruling on reasonableness does in fact trigger a constitutional crisis, the government, not the court, will likely lose that clash. Polls suggest that the government could lose significant political ground even among Likud’s own rank and file.

It’s extremely likely, therefore, that the court’s reasonableness ruling, no matter what it actually says, won’t trigger a crisis. Netanyahu has made a big show of seeking a compromise, partly in an effort to soften the court’s ruling, partly in an attempt to show his center-right flank that he’s one of the cooler heads in this clash, and partly because he probably genuinely wants to avert a crisis he’s unlikely to win.

Opponents of the government see in the coming crisis a moment of terrible danger for the country, but the opposite is true. The government’s political strength has been spent. It has lost the center, and with it any claim to a mandate to do anything as radical as what it tried to push through last winter.

Polls show that most of the public still, even now, supports some kind of judicial reform, and also that most of the public continues not to trust this government to enact that reform. Major changes to the judiciary, it transpires, cannot be advanced in a breakneck, radicalized blitz with a sprawling legislative package thrown together without meaningful public debate or explanation. The public, we now know, won’t allow it.

Nine months ago, the basic idea of judicial reform was not attached in the minds of most Israelis to the most extreme and illiberal impulses of the furthest edges of the political and religious right; today, for at least half the country and stretching surprisingly deep into the coalition’s own voter base, it is.

And this weakness may well cling to the political right for some time. That none of the architects of this failure have paid any political price suggests that the right may not have learned the lesson. Indeed, Levin has emerged from the past nine months as one of the frontrunners to succeed Netanyahu — because of, not despite, how he handled the judicial overhaul. He satisfies a quiet but growing hunger in Likud for plainspoken, unambiguous leadership, for an anti-Netanyahu. He may have failed to get the overhaul passed, this view holds, but at least you know exactly what he believes and wants.

It is possible to undo the linkage in the popular imagination between judicial reform and illiberalism, but it will take trust-building, a massive, visible and believable effort to reach across the aisle even at some political cost, and a move away from all those political forces — from a police minister who seeks to arrest Israeli citizens without warrants to Shas MKs who seek felony prison terms for women’s immodest dress — who gave the overhaul its illiberal story. It is exceedingly hard to imagine Netanyahu doing any of that.

Unwinnable

Yet the political echelon’s failures do not exonerate the High Court of Justice as it sits in judgment of Israel’s Basic Laws.

It’s a curious thing, the High Court’s willingness to rule on its own powers.

It is not without precedent elsewhere. Legal scholars have regaled journalists in recent months with tales of similar cases coming before the supreme courts of India or Germany. But it is nevertheless rare, and a first for Israel.

There are two basic legal arguments for the court to strike down the reasonableness law.

The first is that the Knesset possesses a special “constitutive” power — the power to write a constitution — and while the court does not have the power to strike down the constitution per se, it does have the power to ensure that the parliament uses its constitutive power properly, i.e., in ways that adhere to longstanding legal standards for any legislative or executive action: reasonableness, proportionality, etc.

This is the argument Opposition Leader Yair Lapid made on Tuesday morning when he said the reasonableness law was “deviant and thuggish,” “handled in a process that was violent, rushed, sloppy,” and declared that “those who want Basic Laws to be treated with awe should start by legislating them in a proper process. Basic Laws have a procedure. A minimum of respect for the process. This minimum didn’t happen. Not even close.”

But there’s another theory that argues that some constitutional principles are more fundamental than others, if only because everything depends on them. One example: the right to vote. If the Knesset passes a Basic Law canceling that right, then the court, so the theory goes, would have the power to strike it down on the grounds that it amounts to an “unconstitutional constitutional amendment,” a violation of an inviolable and fundamental constitutional principle without which none of the rest of the constitutional order makes any sense.

This latter theory was the argument advanced last week by Attorney General Gali Baharav-Miara when she urged the court to strike down the reasonableness law.

Whatever merits either theory may have — both have been the subject of legal debates in Israeli law schools and the media for months — in straightforward political terms, neither really offers the court an easy solution. Each in its own way requires an expansion of judicial review, and so hands more ammunition to the other side.

In order for a Basic Law amendment to violate the Knesset’s “constitutive power,” the court has said in the past, it must be a gross violation of the basic principles of constitutionalism. For example, a law written for a single individual or which egregiously violates some clear and discernible human right. It must be more than merely controversial, more than just morally wrong in the view of the judges.

The reasonableness law may be good or bad, wise or utterly foolish, but does it amount to an assault on constitutionalism itself? In Knesset legal adviser Sagit Afik’s response to the court, Afik argued convincingly that the reasonableness change was precisely the kind of boundary-setting between the branches of government that is emphatically and explicitly the job of the Knesset — precisely because it is the country’s “constitutive assembly.”

And what of the second theory, the “unconstitutional constitutional amendment?” In its 2018 ruling on the Jewish nation-state law — the first time the High Court agreed to actually hear a petition against a Basic Law — the court limited any use of this theory to extreme cases, as a last resort. It is a doctrine meant to protect the country against, for example, a Knesset canceling elections or a government’s arresting the Knesset. It is not a tool for resisting relatively marginal limits to judicial review.

To strike down the reasonableness law, the court will have to argue that Israeli democracy is in immediate and profound danger and that other avenues for rescuing it have been exhausted

The point here isn’t to argue against the court’s ruling, whatever it turns out to be. It is to argue that any path the court takes short of accepting the reasonableness law will mark an expansion of its own review powers — an expansion of its oversight over the Knesset’s constitution-making powers or a dramatic new willingness to declare constitutional Basic Law amendments unconstitutional. Either one is a stretching of its own theories about the limits of those powers.

To strike down the reasonableness law, in other words, the court will have to argue that Israeli democracy is in immediate and profound danger and that other avenues for rescuing it have been exhausted. And it must argue that this dire threat comes from the specific change under review, the reasonableness clause, not the larger overhaul first proposed by Levin in January.

The problem with this expansion of the court’s powers, with the argument that Israeli democracy is one short reasonableness amendment away from collapse, doesn’t lie in the realm of legal theory. The problem is political: It won’t work. It won’t end the dispute. It will rekindle it. As Justice Minister Levin put it last week in response to Baharav-Miara’s “unconstitutional constitution” recommendation, what recourse would the Knesset then have to enact change, to set the relationship between the branches of government, which is one of the parliament’s foundational and defining powers and perhaps the most purely democratic feature of Israel’s system of government?

The danger of a court overreach is real and profound. Netanyahu, ever eager to take the path of least resistance, will almost certainly pull back from the brink of a constitutional crisis, but what comes after him? To right-wing supporters of judicial reform, the judges will have left no avenues for reform by straightforward legislative means.

Whether or not one supports such a ruling, it’s important to recognize that it takes the country a step closer to the constitutional clash.

The constitutional abyss

So where does the country stand at the start of the High Court’s first great deliberation on the government’s attempt to weaken its powers?

It is led by a government that tried to change the judiciary so quickly and in such radical ways, and using only a narrow Knesset majority to do it, that millions of Israelis were convinced their government had declared war on democracy.

The court itself, meanwhile, seems set to declare, not as a theoretical point as in the past but in actual practice, that it can cancel an amendment to the Basic Laws, thereby expanding its already expansive powers and seeming to confirm that there are no clear or consistent limits to those powers.

The government was stymied by its own incompetence and radicalism. The court now seems intent on making the case against it by its own hand. Neither seems able to speak to the larger crisis or willing to help the country find a path out of the impasse.

The best signal of this failure is in both institutions’ mistreatment of the Basic Laws they claim to hallow.

On the High Court’s side the point is obvious: The court has claimed for three long decades that the Basic Laws have a special constitutional status that confers on the court the power to cancel other laws that conflict with them. Yet it now plans to expand that power to the Basic Laws themselves. That it is possible to find legal arguments supporting this step doesn’t mean it’s a good idea. Even if it’s the right thing to do, it will have some inevitable consequences; one of these will be the weakening of the standing of the Basic Laws.

But the coalition’s disrespect of the Basic Laws is even more fundamental. The right-wing politicians now complaining about a judicial “oligarchy” that doesn’t respect the Basic Laws’ “constitutionality” have never themselves treated the Basic Laws as anything resembling a constitution. Most of the Basic Laws don’t require any special majority to amend, and in fact have been amended on a whim or for some momentary political need dozens of times in recent years, often with no more than a narrow party-line majority in the Knesset plenum.

The political right demands that the court treat the Basic Laws as an unassailable constitution but itself treats them as flash-in-the-pan legislation

Just in the past nine months, the coalition has amended Basic Laws five times, including some deeply unpopular amendments like the vote in December that made it legal for a criminal serving a suspended sentence (i.e., Shas leader Aryeh Deri) to be appointed to the cabinet. The political right demands that the court treat the Basic Laws as an unassailable constitution but itself treats them as flash-in-the-pan legislation. Or more bluntly: The coalition now routinely changes the rules of the game whenever the game doesn’t give it what it wants.

Neither the court nor the coalition really believe Israel possesses a set of agreed-upon rules that determine and limit their room for maneuver.

And over the long term, that disrespect for the basic importance of hard rules — that denial in practice, if not in rhetoric, that Israel has a real constitution — is more dangerous than any reasonableness amendment.

There is only one path out of the impasse, a path that none of Israel’s elites, political or judicial, are interested in taking

There is only one path out of the impasse, a path that none of Israel’s elites, political or judicial, are interested in taking. It is the path that gives the country Basic Laws that are respected by the High Court because they are first respected by the Knesset, that are hard to change and therefore change only after serious thought and broad agreement, and that because of that broad agreement enjoy widespread public trust and can be amended without panic and protest.

Israel needs a true constitution, one with enough robust checks on government power to make constitutional reforms something less debilitating and terrifying than they are now.

It’s hard to imagine the current coalition leading such a process. Given the High Court justices’ apparent belief that it is their finger in the dam holding back the illiberal flood, it’s hard to imagine the court stepping back from further expansions of its own review powers anytime soon.

And there lies the latent tragedy in this Israeli political moment. No parts of Israel’s governmental machinery are willing or able to transform this moment from the dangerous impasse it has become into the long-sought constitutional breakthrough that most mainstream political forces claim to want.

If power begets responsibility, then it is to the vacuum of indecision around which the crisis swirls that Israelis must turn, to a prime minister who has remained steadfastly reactive from the start, who clings to the path of least resistance and so is constantly led into new rounds of damaging political conflict by the more proactive and radical forces with which he has surrounded himself. As Yariv Levin keeps reminding Israelis, the court shouldn’t legislate from the bench. The responsibility for setting Israel on a better path, then, rests with the Knesset, with the very parliamentary majority that still refuses to learn the lesson of the past ten months: Constitutional change requires trust.

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