The most undemocratic of the hurried Supreme Court announcements on Monday was not the 8 to 7 ruling revoking the amendment that removed the reasonability clause. That ruling was a mugging that took advantage of the political echelon’s reluctance to counter-attack in wartime and used a very temporary majority of 8 to 7 justices that included two retired justices, Esther Hayut and Anat Baron. Without them the vote on the same amendment, after the government gets around to rewriting it, will likely be reversed to 7 to 6 against.
But the punch-in-the-face, no-holds-barred decision on Monday was that the Supreme Court has the authority to conduct a judicial review of basic laws and intervene in “exceptional and extreme cases where the Knesset exceeded its constituent authority,”
That one was passed with a 12 to 3 majority, meaning it will not go away. What used to be the sanctified rule for close to 75 years, that Israel’s basic laws are tantamount to a constitution, and as such the court cannot contemplate anything that starts with the words “basic law,” is no longer.
It means that even the court after Esther Hayut, whose majority is not hyper-activist, does not trust the Knesset’s protocol for enacting basic laws. In fact, the court rejected the assertion of legendary court president Aharon Barak’s whimsical assertion that for a law to be a basic law it requires the legislator to interject those two words into its title.
That is not all bad. Many have observed that the majority of Israelis who stormed the streets and highways against the judicial reform (a million years ago) objected to that very notion – that constitutional laws could be enacted with a simple majority, just like a regular law, but would be shielded from Supreme Court intervention. The Knesset should remedy this by establishing a different protocol for basic laws, requiring a more substantial majority, and adding the proviso that those laws would be outside the court’s reach.
Incidentally, establishing a new protocol would offer the legislator an opportunity to rewrite some basic laws, most notably Basic Law: Human Dignity and Liberty which was passed with 32 yea votes, and has been the foundation of the activist court’s 30-year crawling coup d’état.
Otherwise, that was some nasty, underhanded move by the Vogelman court on Monday. As Justice Minister Yariv Levin put it:
“The decision of the judges of the Supreme Court to publish the ruling while at war is the opposite of the spirit of unity required these days for the success of our fighters at the front. The judges actually take into their hands in this ruling all the powers, which in a democratic system are distributed in a balanced way among the three branches of government.
“A situation in which it is impossible to even enact a basic law or make any decision in the Knesset and the government without the approval of the supreme court judges takes away from millions of citizens their voice and the basic right to be equal partners in decision-making.
“The ruling, which is unparalleled in any Western democracy, will not weaken our hands. but as long as the war continues on the various fronts, we will continue to act with restraint and responsibility.”
Chairman of the Constitution, Law, and Justice Committee MK Simcha Rothman said on Monday night, “I was hoping that they were connected to the magnitude of the hour, but unfortunately they chose to give a different ruling – the High Court chose its war.”
Rothman added, in a tone similar to that of his partner in passing the judicial reform, Yariv Levin, “I say clearly, there is no reason in the world that during the war we should deal with this matter. No reason in the world, whatever happens after the war will happen, and there is plenty of time to deal with it afterward. At the moment, dealing with the issue of judicial reform is simply irrelevant. If no agreements are reached on a given matter, we simply won’t do it. We’re waiting until after the war. Everything in the Knesset now moves forward only with agreements across the board, and we spend many hours on making it happen.”
