Reasonableness Bill Struck Down
Divisive Issue Back in the Spotlight
Since the start of the war, Israel’s internal divisions haven’t completely disappeared but they have definitely receded into the background. Today though, they are front and centre, as the Supreme Court has issued a controversial ruling.
The war continues in full fury. The hostages are still in captivity. The brave IDF soldiers continue to fight in difficult conditions against an implacable and lawless enemy.
That said, here is some background and thoughts on today’s court ruling.
Back in July, the first article I wrote after I launched Canadian Zionist Forum was about the passage of the Reasonableness Bill. This change to Israel’s basic law governing the courts took place in the face of very large and persistent protests in the streets of Israeli cities. The protests were a response to the Israeli government’s plans for a number of changes in the laws governing the makeup and powers of Israel’s courts. Supporters of these changes call them the Judicial Reform and view them as a way of recapturing power from a Supreme Court that is out of touch with, and indifferent to, the views of the majority of Israelis.
Opponents call the program a judicial coup and see it as paving the way to an authoritarian regime in Israel, without the necessary checks on government action provided by the courts in other liberal democracies. The tactics and rhetoric of the opponents of the government’s plans included acts of civil disobedience such as blocking the Ayalon, the main highway through Tel Aviv. Even more controversially, there were statements from some IDF reservists, who do extra training as volunteers, that they might stop showing up for duty.
In spite of the protests, the government advanced a law in the late winter to change the composition of the Knesset committee that chooses judges for the Supreme Court. The changes would have given the ruling coalition the power to appoint justices unilaterally. This was a change from the existing situation which ensures that any justice named to the court requires the support of both government and opposition members of the Knesset, as well as from members representing the Bar Association and the Supreme Court itself.
For opponents of the change, this seems to be an attempt to politicize the court. They point to Venezuela, Hungary and Nicaragua, where stacked courts enabled the ruling party to effectively put an end to democracy, and hold power indefinitely. For supporters of the change, this is an attempt to rein in a court which gets to choose its own members. The protest movement intensified as the legislation advanced.
The perceived threat to the readiness and unity of the Israel Defense Forces was sufficiently serious that the defense minister, Yoav Gallant broke ranks and called publicly for a delay in pushing the legislation forward. Prime Minister Netanyahu’s initial response to Defense Minister Gallant’s statement was to announce on March 29 that he was firing Gallant. This action spurred thousands of demonstrators to block the Ayalon and large protests in several cities around the country. The article linked just above concluded by quoting an Israeli judge David Lurie to the effect that there was a constitutional crisis in Israel.
Image: Israeli Supreme Court By israeltourism - https://www.flickr.com/photos/visitisrael/6180275423, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=26626207
Ultimately, the government backed down. They delayed the advancement of the legislation by a few months and Gallant retained his job. Talks began under the auspices of Israeli President Herzog, to try to find a compromise that would be backed by a broad consensus of parties in the Knesset. These talks did not produce a result, and when the Knesset resumed consideration of the legislation in the summer, it was the less controversial reasonableness legislation that was advanced. I wrote at the time that while I opposed this law curtailing the power of the court, I didn’t think the court had the right to overturn it. I wrote that a new government would have the power to repeal the change with 61 votes, just as the government had passed it with 61 votes. Clearly there is a problem with a system where quasi-constitutional change can be passed by a bare majority of the legislature, but that is what Israel has in the absence of a constitution and an amending formula with a higher threshold.
When I visited Israel in August, the weekly protests were ongoing and the government was said to be getting ready to bring back other measures for consideration in the Knesset. At the same time there talks continued in an attempt to come up with compromise legislation that would win the backing of a broad consensus of the Knesset. I attended a protest in Jerusalem near the end of August with my sister and brother in law, which I also wrote about in one of my earlier articles.
When the war broke out in October, the government blamed the reservists and the protest movement blamed the government for showing weakness that encouraged the enemy to attack. Both sides were likely wrong, as the Hamas attack was clearly the product of years of preparation and planning. Hamas crowed publicly about how they had lulled Israelis into a false sense of security by projecting an air of moderation and securing jobs in Israel for 20,000 Gazans. It turned out that some of these Gazans acted as spies who provided the intelligence used by the criminals conducting the October 7 genocide to maximize the level of death and destruction.
A unity government was formed to prosecute the war and the judicial legislation was deferred indefinitely. The country pulled together and a deeply divided country suddenly began to look like a very united country. While the political divisions and sniping continued, many reservists reported for duty in the war before they were even called up. The number who mobilized was so large that the army did not have equipment for all of them, prompting a wave of fundraising by private groups to buy the latest body armour and other equipment for reservists who complained of insufficient or obsolete gear.
Today, Jan 1, 2024, the Supreme Court announced that by a vote of 8 to 7, they had invalidated the legislation on reasonableness passed last summer.
Having criticized the government for advancing the legislation last summer, I now find myself criticizing the Court for striking it down. As I wrote then, I don’t see how a court whose powers rest in basic Israel’s basic laws can have the power to over-rule those same laws. But I’m not a lawyer. Some argue that the court’s power to assess reasonableness derives from the centuries old unwritten provisions of common law, and that the legislature does not have the power to revoke it.
At a minimum, the decision by the court to issue the ruling now, in the middle of this deadly war, seems ill timed. It is bound to stir up the deep anger expressed by some of the supporters of the legislation, at what they see as an unelected elite arrogating power to itself. As discussed in the article linked at the start of this section, the government could pass the law again, knowing that two of the eight judges who supported the decision have now retired.
The government could also in theory say that it will not abide by the decision, but that would create a full blown constitutional crisis. It seems most likely that the government will defer any action until after the war. Since the war seems set to go on for many more months at a minimum, the crisis potentially triggered by this ruling of the high court is likely to be deferred as well.
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Earlier Canadian Zionist Forum articles on this Topic
Coalition Passes Reasonableness Bill July 24, 2023
Update from Israel July 30, 2023
Quick Update from Israel August 28, 2023
That was an interesting topic - thank you for presenting it so clearly.