Prime Minister Benjamin Netanyahu claims that, in the absence of a constitution, the Israeli legislature (the Knesset) is supreme and can change anything with a bare majority (61 votes). The Supreme Court and its supporters deny this claim, asserting that the Court does have legitimate grounds for over-ruling the Knesset. Is there a viable legal basis for the Court’s assertion of authority?
Yes. There are several legitimate arguments in defense of the Court’s actions to protect democratic procedures and human rights in Israel. Among these is invocation of Israel’s Declaration of Independence, the elevation of certain Basic Laws above others, and recourse to accepted universal principles of jurisprudence.
In perspective, it is not entirely accurate to say that Israel has no constitution. Israel has no written constitution, but it has some deeply enmeshed procedures embodied in thirteen “Basic Laws” that were to be the building blocks of a constitution. Nearly all of the envisioned building blocks have been adopted and need only to be “entrenched”: that is, to be given a formal constitutional status requiring a super-majority to be changed – like the U.S. constitution. In the meantime, a Basic Law can be changed, like any ordinary piece of legislation, by a simple vote of 61 Knesset members. That is what the current government has just done with its “judicial reform.”
And Israel’s Declaration of Independence can also be considered “constitutional” as it contained solemn commitments about the state it was declaring. Among these was a promise to “uphold the full social and political equality of all its citizens, without distinction of race, creed, or sex” and to “guarantee full freedom of conscience, worship, education, and culture.” The Court is clearly on solid ground in holding the government and the Knesset to these principles.
Two of the Basic Laws (Freedom of Occupation and Human Dignity and Liberty) include a provision that, in the court’s interpretation, provides grounds for invalidating contradictory laws or actions, even in other Basic Laws. This provides that “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” Shortly after these two Basic Laws were adopted, the Court reaffirmed its power of judicial review on this basis.
Then there are standards of common law that have been incorporated into the legal systems of most, if not all, states in the liberal democratic world – yes, including Israel. The Israeli legal system is, after all, a continuation of the legal and judicial framework established by the British during the Mandate. And while much of this law has over time been codified by the Knesset in building the Israeli law code, citations from British (and even American) common law precedents can be found in Israeli jurisprudence.
Among the principles to be found throughout the civilized world is the standard of “reasonableness” in law and administration. See, for example, the analysis of the International Commission of Jurists. This was, of course, the subject of the first piece of “judicial reform” carried out by Netanyahu’s cabal. If Bibi has his way, no future actions will need to be reasonable.
We now await the response of the Supreme Court to this first move in the campaign to remove judicial limits on the Knesset and leave it free to act on its whimsies. Will the Court come to the logical conclusion that abolishing reasonableness as a standard is, in itself, an unreasonable act? Let’s hope so.
Viewing the issue as a matter of politics and recognizing that the Israeli Supreme Court has not been an 'activist' court for the most part, I expect the Court to point out the legislation's illiteracy and ask the Knesset to define it more explicitly. That will offer the PM and Knesset another opportunity to act 'reasonably' if they want to return the country to sanity.