The judges of Israel’s Supreme Court had not yet entered the courtroom when the currency, the shekel, had already fallen to its lowest level since 2020 and a lawmaker from Benjamin Netanyahu’s (Likud) party, Tally Gotlib, shouted to the cameras: “This is a circus at the expense of the people!” It was the first proof of the importance – with live broadcasts – of the hearing in which the judges will listen this Tuesday to the arguments for and against the first key law of the Netanyahu government’s judicial reform – and interrupt frequently. It is a rule that has deprived the Supreme Court itself of the ability to declare decisions by the executive branch and other elected officials “unreasonable.” Parliament approved it in July with the votes of all deputies from the right-wing coalition government (Likud, ultra-nationalists and ultra-Orthodox) and none from the opposition, who were absent in protest.
It is the first hearing in the Supreme Court’s 75-year history with all 15 justices. It didn’t take long before it turned into a ping-pong of opinions and a legal and political debate about the separation of powers. Some judges have indicated that they oppose the law, such as President Esther Hayut, pointing out that stripping the Supreme Court of its power to oversee the adequacy of the government’s decisions means that it is “law, but there is no justice”; or Yitzhak Amit, with the sentence: “Democracy does not die in several heavy blows, but step by step.”
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They have until January to make a judgment. If they annul the law and the executive rebels (as some ministers have suggested), Israel would face a constitutional crisis three years before the next elections. This morning, ten coalition MPs and the President of the Parliamentary Justice Commission, Simja Rotman, tweeted the same sentence: “The Knesset [el Parlamento nacional] “She will not allow herself to be trampled submissively.” This was expressed last week by Parliament Speaker Amir Ohana in a warning tone.
The case is not only politically explosive, but also unprecedented. In the absence of a constitution, Israel is governed by 13 basic laws. The Supreme Court is debating whether to overturn a change to one of these regulations. In the 1990s, the court’s then-president, Aharon Barak, established the Supreme Court’s power to overturn ordinary laws that violated basic laws, similar to a constitutional court in other countries. This has happened twenty times since then, but never with any of the basic rules. “We cannot override a basic law every now and then. “It must be a fatal blow to the fundamental pillars of the state as a democratic state,” emphasized the court president during the hearing.
The debate centered on the legitimacy of the Supreme Court to take this unprecedented step, as well as the core of the separation of powers and the rule of law. Representatives of Parliament, the government and Rotman have argued that the court lacks powers. Repeal of the law, they have defended, would be tantamount to doing so with the will of the people represented by the legislative and executive powers.
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– “This is the court… The debate cannot take place.” [el Tribunal de] Strasbourg, but here,” one of the judges replied to Rotman.
– “The debate belongs to Parliament,” he replied.
Rotman, of the far-right Religious Zionism group, also described Supreme Court justices as “elite” who only “look out for their own interests.” The president of the court responded that they were guided only by the “vital interests of the public.” “Not us, not our status, not our honor,” he clarified.
Protest in front of the Supreme Court by reform advocates, this Tuesday in Jerusalem.AMIR COHEN (Portal)
Shortly before it began, Justice Minister and architect of the reform, Yariv Levin, described the hearing as a “fatal blow to democracy and the status of the Knesset” with a “complete absence of authority.” On the contrary, opposition leader Yair Lapid considered the “disagreements over whether the Supreme Court can annul a basic law” to be “not applicable” to this case. “It is an irresponsible document in which someone wrote ‘Basic Law’ and has since demanded that it be treated as if it were the Bible,” he added.
The latest Voice of Israel Index, the August survey by the Israel Institute for Democracy think tank, reflects the polarization caused by the reform, which has also exposed wider social divides that affect 80% of Jewish citizens. 34% of Israelis support the Supreme Court’s repeal of the law under debate, 37% are against it and 29% have no opinion on it.
One of each
Critics of the reform see the goal as slowly turning the country into a dictatorship or a situation similar to that in Turkey, Poland or Hungary. Something to which the representative of the government’s legal adviser, Aner Helman, implicitly alluded to this Tuesday when he drew attention to “what has happened in the world in the last 10 years”. Adviser Gali Baharav-Miara, Prime Minister Netanyahu’s black shadow, declined to represent the executive branch, as would be her position. Helman, a private attorney, did.
Since the reform was unveiled in January, tens of thousands of Israelis – hundreds of thousands, in largest gatherings – have demonstrated against it, particularly in Tel Aviv. On Monday, on the eve of the trial, there was a small protest in front of the Justice Minister’s house and another, larger one (around 20,000 people) in front of the Supreme Court in Jerusalem.
The initiative (a legislative package) aims to undermine the counterbalance role of the Supreme Court. The government calls it “rebalancing” or “correcting” the balance of power.
Each branch of the executive branch has its own interests, all aimed at the same goal: removing filters from the Supreme Court and changing the composition of the committee that elects judges. The far-right partners associated with the colonization movement (those most committed to its continuation) see the Supreme Court as the final obstacle to their plans in the occupied Palestinian territories. The ultra-Orthodox want to push for a formal exemption from conscription (the Supreme Court rejected a previous similar proposal). Netanyahu is facing charges on three counts, but amid the turmoil he has been searching for months for a way out of the mess he created.
The reform has plunged Israel into one of its greatest political and social crises. In addition to the division within the Jewish majority, the shekel has weakened (0.2% more, this Tuesday) and the protest has reached the armed forces, the country’s most respected institution. In addition, Netanyahu remains uninvited to the White House, unprecedented since the 1970s, and the President of the United States, Joe Biden, regrets the radicalism of his executive.
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