The Verdict is in: Checks and Balances are Here to Stay

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This decision refocused our attention not only on the specific law it struck down but also on the unfinished business of completing our country’s constitutional framework

The Knesset at dawn. Photo by Chaim Goldberg/Flash90

Israelis were reminded this week that while the nation is more united than ever in defending itself from external threats, the months leading up to the war saw a deep internal divide that remains unresolved. In perhaps the most important landmark decision in Israel’s history, the High Court affirmed, first and foremost, that there are limits to the Knesset’s power.

This decision refocused our attention not only on the specific law it struck down but also on the unfinished business of completing our country’s constitutional framework and finally defining the rules of the game that govern the three branches of government, existent in all democracies.

Even the Knesset has limitations

The Knesset, as the High Court affirmed by a large majority, cannot pass any Basic Law it wishes, nor can it revoke or severely harm the essence of Israel as a Jewish and democratic state. If it does so, there is no longer any doubt that the High Court has the right to strike down even a Basic Law. Indeed, the label “Basic Law” does not give the Knesset immunity from High Court intervention, given the ease with which Basic Laws are passed in Israel – laws that are supposed to form chapters of our constitution. When the justices write that the Knesset is subject to limitations, they really mean “the government.” It is the government that, in practice, controls Knesset legislation with a heavy hand, via its coalitionary majority.

Readers will recall that the “reasonableness amendment” to the Basic Law: The Judiciary sought to prohibit the High Court from reviewing decisions made by the government and its ministers using the reasonableness doctrine. By means of this amendment, the government attempted to exempt itself from its duty to behave in a reasonable manner. While the government has an obligation to treat Israeli citizens reasonably, the amendment would have made this unenforceable, as it would strip the High Court of its ability to oversee and force the government to meet its obligation.

In an 8-7 majority, the court struck down the reasonableness law amendment, asserting that it harmed the principle of separation of powers and the principle of the rule of law; exempted the highest officeholders in the country (the prime minister and government ministers) from their duty to behave in a reasonable manner; undermined the principles of proper administration and incorruptibility; and could have lead to improper utilization of government resources.

A thin majority is a problematic indicator

While the amendment to the law attempted to place the government and its ministers above the law, blocking the possibility of the courts examining their actions on the basis of claims of unreasonableness, to the judges this represented severe harm to the fundamental tenets of democracy.

Attempts to present the ruling as a “wafer-thin majority” are misleading. On the truly important, forward-looking questions, the majority is much more solid and is far from being a division of “liberals” vs “conservatives.” The verdict addressed two main questions: First, does the High Court have the power to strike down a Basic Law if the law causes severe harm to the fundamental principles of democracy? And second, in the current case, should the reasonableness amendment be overturned?

On the first question, regarding the right of the court to strike down new basic laws or amendments to basic laws, the verdict was overwhelmingly clear: 12 of the 15 justices ruled that the High Court is indeed empowered to apply judicial review to Basic Laws and to intervene in exceptional cases in which our leaders exceed their powers.

It is worth remembering that the power for judicial review is not explicitly stated in law, and yet a large majority of justices think that they are empowered to strike down Basic Laws in extreme circumstances. Of course, the government’s stated position to the High Court in this case was that there is no justification for any judicial review: If the Knesset errs, the people will replace it during elections. This position, it turns out, is not accepted by the large majority of the justices.

The only disagreement between the majority and minority decisions concerned the concrete case at hand – whether the reasonableness amendment could severely harm Israeli democracy. Was it an example of an “extreme case” in which the court should intervene? A majority of eight justices thought that it was and that there was no option but to intervene.

Seven justices thought that there was no justification for intervention in this case, even though some of these, as noted, ruled that the court does have the right to review Basic Laws. Their view is that we have not yet arrived at the kind of extreme case that would require intervention and that the amendment in question can be interpreted in such a way that the High Court could still rule on unreasonable decisions made by the government.

Today, the Supreme Court was able to do its job

At the end of the day, the majority of justices were willing to step up and defend Israeli democracy. The verdict sets a precedent with historic significance. When you look past the dramatic decision to strike down a Basic Law, the ruling makes a clear and unprecedented statement about the limits of Knesset power.

The verdict is also important with regard to judicial review of the government using the reasonableness doctrine. The government sought to remove key restrictions on its power, attempting to achieve a form of immunity via the reasonableness amendment. This attempt has now been blocked by the High Court, which ruled that revoking the reasonableness law and making the government all-powerful, free of any meaningful review of its decisions, would cause severe harm to the core values of the state.

Looking to the future, Israelis can now rest assured that the High Court justices will be there to defend democracy for as long as their professional and political independence is maintained.

But this precedential verdict also raises another and no less critical aspect: the importance, after the war, of reinforcing the constitutional rules of the game, placing checks and balances on political power, and better defining the relations between the branches of the state.


This article was first published in the Jerusalem Post.