How Israel Can Avoid a Constitutional Crisis

September 13, 2023 | Haviv Rettig Gur
About the author: Haviv Rettig Gur is the senior analyst for the Times of Israel.

Yesterday, Israel’s supreme court—in an unprecedented plenary session—heard arguments over a recent law that removes its own ability to override executive-branch decisions on the grounds that they are “unreasonable.” The law in question is only one small portion of an intended program of judicial reform, the rest of which has yet to make it through the Knesset. The court’s ruling, expected in a few weeks’ time, could have momentous consequences, determining whether it has the authority to overturn Basic Laws, which, in Israel, function in lieu of a constitution. Haviv Rettig Gur writes:

The court . . . 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?

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.

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. 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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