The HCJ Strikes Back: Israel’s Supreme Court Pulls the Plug on “Judicial Reform”
Two judgments issued by the Supreme Court in the first week of 2024 deal a decisive blow to the Netanyahu government’s efforts to radically rebalance the branches of government.
Photo by Yossi Zamir/Flash 90
On Jan. 4, 2023, Israeli Minister of Justice Yariv Levin declared his plan for the overhaul of the Israeli legal system—a plan we discussed at length in several Lawfare pieces. In the first three quarters of 2023, this plan dominated the public discourse in Israel and was at the heart of a fierce political power struggle. It is perhaps symbolic that in the first week of January 2024, a full year after the overhaul plan was announced, the Israeli Supreme Court sitting as the High Court of Justice (HCJ) issued two major judgments that effectively sealed the fate of Levin’s plan. Naturally, since the Hamas attack on Oct. 7 and Israel’s ensuing war in Gaza, public attention in Israel has turned away from the judicial overhaul efforts to the armed conflict. However, the judgments issued by the HCJ in January 2024 will certainly have a long-lasting effect on Israeli constitutional law, as well as on the country’s political future.
The Reasonableness Case
The most important of the two judgments is the Movement for Quality Government in Israel v. the Knesset judgment issued on Jan. 1 on the reasonableness constitutional amendment. As discussed in detail here, the petitioners in the case asked the HCJ to strike down an amendment to a basic law, removing the power of Israeli courts to use the “patently unreasonable” doctrine when judicially reviewing executive branch decisions taken at the ministerial level. The challenged law passed on July 26, 2023, as an amendment to the Basic Law: Adjudication.
In its judgment, the court dealt with two distinct issues. The first issue was whether the court has, in principle, the legal authority to strike down basic laws or amendments to basic laws. The second was, if the court does possess this authority, whether the reasonableness constitutional amendment should be struck down. Given the dramatic importance of the case for Israeli constitutional law, it was the first case in the country’s history in which all 15 justices of the court sat on the panel. The outcome of the judgment is also dramatic: Eight justices accepted the petition, and seven rejected it. Still, a broader majority of 12 out of 15 accepted that the HCJ has, in principle, the legal authority to review constitutional amendments (one of the three remaining justices also leaned in this direction but voted to reject the case for lack of ripeness of the petition). As the judgment is almost 750 pages long, we cannot fully capture all nuances found in the 15 opinions of the different justices. We therefore limit ourselves to a recap of the questions posed in the judgment and a brief description of the essential parts of the responses to these questions.
Case Background
Israel does not have a complete constitution. Instead, it has a set of 13 basic laws, which are passed by Israel’s legislative body, the Knesset, in a procedure identical to the one required to pass ordinary legislation. In a 1995 landmark case (United Mizrahi Bank), the court held that, when passing basic laws, the Knesset operates as a constitutional assembly (acting on delegated authority, which was passed from the post-independence constitutional assembly to future Knessets) and that, therefore, basic laws are hierarchically superior to regular laws. Furthermore, the court declared that it had the legal authority to strike down regular laws that are incompatible with provisions found in basic laws. Since then, the court has struck down 23 laws or legislative provisions. It has not struck down any provision of the basic laws themselves, although it suggested in several past decisions issued by different judicial panels that it may do so (see here and here).
It is against the backdrop of uncertainty regarding the power of the HCJ to review amendments to basic laws that the Knesset passed an amendment to Basic Law: Adjudication on July 24, 2023. This amendment stripped away from the court the power to review the reasonableness of any decision issued by the government or a government minister. As we discussed here and here, the reasonableness doctrine (or the “patent unreasonableness” test) plays a central role in Israeli administrative law. It allows courts to review the procedure by which executive decisions are adopted, the weight given during the decision-making process to different considerations underlying the decision, and the propriety of the final outcome, asking in each stage of the review whether the government acted in ways in which no reasonable government could have acted. The doctrine was developed essentially to ensure that government officials respect their fiduciary duties vis-a-vis the public they serve and exercise their powers with a view to advancing the public interest.
The Main Questions Considered by the HCJ
In its reasonableness judgment, the HCJ clearly settled the question of its authority to strike down basic laws if and when certain conditions are met. Twelve out of the 15 justices agreed that whenever a basic law provision contradicts the core aspects of Israel’s identity as a Jewish and democratic state, the HCJ may strike it down. The court explained that, even when the Knesset operates as a constitutional assembly, the power it exercises is not unlimited in scope. This premise is based, according to the opinions of most justices, on the foundational normative structures created by Israel’s “constitutional constellation in its entirety”—comprising Israel’s Declaration of Independence, the 13 existing Basic Laws, and the court’s jurisprudence related to them. This framework—which is conceptually similar to the Indian Supreme Court’s “basic structure” doctrine—provides that the Israeli people, the real sovereign, did not delegate to the Knesset, even when operating as a constitutional assembly, the legal authority to change the core of Israel’s identity as a Jewish and democratic state.
Not all justices in the majority fully endorsed the “constitutional constellation in its entirety” approach. Justice Alex Stein built his opinion on the position that the Israeli Declaration of Independence, which set in place the process of elections to the constitutional assembly, serves as a formal constraint on the adoption of basic laws, and Justice Yael Willner based her approach on Basic Law: the Judiciary, which authorizes the HCJ to provide a just remedy in any case not subject to the jurisdiction of another judicial body. Even one of the three minority justices, who did not vote in favor of the proposition that the court may review basic laws—Justice Yosef Elron—was willing to consider reviewing constitutional amendments in extreme cases infringing on individual rights, without elaborating the precise normative benchmark he would use in such cases.
The HCJ’s conclusion that the Knesset’s power to pass and amend basic laws is not limited by the existing constitutional constellation in its entirety was reinforced by policy considerations in the leading opinion. Written by outgoing HCJ president, Esther Hayut, the opinion states that a lack of judicial review over amendments to basic laws on grounds that the constitution has not yet been finalized would disincentivize the Knesset from ever completing the constitution; the ease by which it is now possible to amend the constitution opens the door to chronic abuse of the amendment process and is a source of constitutional instability; and the total control exerted by the political majority in the Knesset over the constitutional amendment process conflates day-to-day politics and the drafting of constitutional texts along partisan lines.
The tension in the Knesset between daily politics and constitutional processes is closely tied to the reason why the majority of justices held that the only institution capable of enforcing limits on the Knesset when it passes or amends basic laws is the Israeli Supreme Court. Due to the unique configuration of the Israeli political system, vast power is concentrated at the hands of very few individuals—that is, the heads of the few parties that form the ruling coalition, which controls both the government and the Knesset and, through it, holds the keys to pass new basic laws or amend existing ones. These “controlling stakeholders” are not effectively limited by any political check and face few legal limitations.
Israeli democracy also does not feature a real division of power between the political branches of government, as the Knesset is a unicameral body controlled by the same parties that control the executive branch. There is also no real version of Israeli federalism, as there is no vertical division of powers across different geographic areas. As a result, the Israeli Supreme Court is the only real check on the power held by the ruling coalition. If the court does not have the authority to review basic laws, the power of the ruling coalition would, in fact, be unlimited.
Still, two of the Justices—Noam Sohlberg and David Mintz—rejected this approach altogether, and held that the HCJ has no formal authority to review new basic laws or amendments to existing ones. Sohlberg took the position that the question of what is the grundnorm of the Israeli legal system is not a proper legal question that the court is competent to determine, and Mintz held that it would be undemocratic for the court to have the “last word” in the Israeli legal system.
However, the 12 justices that supported the authority of the court to strike down basic laws in principle were divided into three subgroups with regard to the application of their holding to the specific reasonableness constitutional amendment. Eight of the justices took the view that the amendment indeed undermined the core values of Israeli democracy. Although the reasons they offered were not identical, they can be summarized for brevity’s sake in the following manner.
First, the majority justices considered the amendment to run afoul of two cardinal democratic principles: separation of powers and the rule of law. They found that by removing the court’s power to undertake reasonableness review, the government—which stood behind the amendment—assigned to itself considerably more power than it had before to take policy decisions that ran contrary to the public interest, to make political appointments and to act arbitrarily, and concurrently weakened the ability of the judiciary to apply checks on its power. In addition, they found that the amendment created a highly problematic legal condition, pursuant to which the government was formally still bound by the legal duty to act reasonably (which was not abolished by the constitutional amendment), but could not be held legally accountable if it breached this duty. This “law without a judge” anomaly was viewed by the majority as incompatible with basic rule of law requirements and resulted in placing certain government decisions effectively above the law.
Second, the majority justices claimed that without the patently unreasonable test for reviewing government actions, individual rights would be seriously harmed. Sometimes the only way to effectively protect individual rights under Israeli administrative law is by declaring that the decision adopted by the official is unreasonable. This is especially true when the decision was a policy decision, which could harm many different individuals (for instance, environmental policy decisions).
Third, the majority expressed strong concerns that the reasonableness amendment might compromise the integrity of elections, since the court used the patently unreasonable test to limit the ability of interim governments—the government that is still in power after elections were already declared—to manipulate the results. For example, the HCJ has previously limited the power of such governments to initiate during the election season vote-getting economic policies, such as the introduction of free new health services or subsidies, that might render the elections unfair or other major policy initiatives that would tie the hands of the next government.
Fourth, the justices stressed that the patently unreasonableness test provides Israeli gatekeepers, especially the professional legal service within the government, with a powerful tool to prevent the government from adopting illegal policies by requiring government ministers to provide detailed explanations for their decisions in order to be able to defend them if and when brought before judicial review. Moreover, the reasonableness amendment appeared to pave the way for the government to politicize the appointment of the gatekeepers themselves and to dismiss those who hold them to account—thereby removing another important internal check on executive power, which affords an important rule of law safeguard.
Three of the justices who supported in principle the court’s power of review over basic laws—Justices Stein, Willner, and Gila Canfi-Steinitz—were of the view that the problems associated with the reasonableness constitutional amendment could be addressed through embracing a narrow interpretation of the new amendment. According to these justices, the legislative record suggests that the drafters were mostly concerned with post-1980 applications of the reasonableness test that involved an assessment of the way in which decision-makers balanced between competing considerations. Hence, they proposed to read the amendment as removing from the court’s power of review only the most expansive version of the reasonableness test, and not excluding application by the court of earlier versions of the reasonableness test, focusing on arbitrary procedure and outcomes. (The majority of justices were of the view that such an interpretive move would contradict the clear language of the law, and the intent of some of the main proponents of the legislation.) One additional justice, Justice Yechiel Kasher, was of the view that, even in its most extreme interpretation, the amendment does not reach the threshold required for judicial intervention and should not be struck down, notwithstanding its democracy-eroding aspects.
The Incapacitation Law Case
On Jan. 3, the HJC handed down its judgment in another case brought by the Movement for Quality Government in Israel against the Knesset, regarding the constitutionality of the incapacitation law. It partially accepted, on a razor-thin majority, the petition and held that an amendment to a basic law effectively shielding Prime Minister Benjamin Netanyahu from being removed from office due to the conflicts of interest related to his criminal trial constituted “tailor-made legislation” serving his immediate personal interests. The court held that, under the circumstances, the appropriate remedy is to read the amendment as applicable only from the next Knesset term onward.
The law in question was an amendment to Basic Law: The Government, which renders it significantly more difficult to remove a serving prime minister from office due to his or her being in a state of incapacitation. The amendment provides that the legal incapacitation of the prime minister, which would result in a temporary or permanent removal from office, could be declared only by the prime minister directly. The alternative would be for both the Knesset and the cabinet to declare incapacitation only when acting on the basis of a supermajority and when relying on medical reasons. (Before the amendment, the basic law did not set out a process for declarations of incapacitation and did not enumerate the grounds for incapacitation.)
The amendment passed on March 27, 2023. It was intended to preempt a potential move by the attorney general to declare that Netanyahu was “legally incapacitated” because of continuous violations of the terms of his conflict of interest arrangement, which he agreed to adhere to when assuming office while criminal proceedings are pending against him. Although the attorney general maintained that she had not intended to declare Netanyahu as legally incapacitated, the prime minister felt threatened by the mere possibility of declaring him so, under the language of the existing basic law.
As with the petitions against the reasonableness constitutional amendment, the petitions against the incapacitation constitutional amendment included a claim that the constitutional amendment in question should be struck down. By a six-to-five majority, the HCJ decided that the amendment constituted an abuse of constitutional process, since its goal was “personal” in nature—that is, it was intended to free Netanyahu himself from the pressures and conflicts of interest connected with his criminal trial. Still, the court decided that the appropriate remedy for the legal defect would not be to strike down the amendment but, rather, to interpret it in a manner that goes into effect only after the next elections. The five minority justices voted to reject the petition, claiming that although the legislation might have been motivated by personal reasons, it was not shown that its chief aim was to serve a specific personal purpose. Some of them also maintained that the result of a finding of abuse of constitutional process should simply be the conferral on the amendment of the status of ordinary legislation.
It should be noted that this is not the first time that the HCJ expressed its support for the proposition that a basic law could be struck down on the basis of the “abuse of the constitutional process” doctrine. What is novel about this case is that the majority decided for the first time that a constitutional amendment was serving personal aims, even though it was framed in a general way. Since there was no special justification for the Knesset that could support the harnessing of a basic law amendment for the personal interests of the prime minister, the court held that it can cure the defect in the law through postponing its entry into force by way of interpreting its contents. Such a postponement would render the unlawful personal aspect of the amendment largely inapplicable. The upshot of the case is that Netanyahu is now legally exposed to being declared incapacitated. The court will soon be hearing a petition requesting it to order the attorney general to declare Netanyahu legally incapacitated due to his violation of his conflict of interest statement.
The Commonalities of the Two Cases
Although the two cases are different in their factual and legal bases, they share some common features. First, in both cases, the court discussed its authority to review basic laws and decided it had such an authority. Second, both cases dealt with an attempt by the Israel right-wing coalition to weaken the courts by adopting dramatic constitutional amendments that seek to change the “rule of the game” with immediate effects. In both cases, the HCJ responded forcefully to this attempt and struck down the laws. The extreme nature of both amendments—the total removal of powers of reasonableness review over government members and the creation of an unrealistically high threshold for incapacitation—and the partisan nature by which they were rushed through the Knesset illustrated to the HCJ the risk of leaving the coalition with unlimited constitution-making power.
It is thus ironic that the main achievement of Minister Levin in his tenure has been to strengthen the court he has sought to weaken. Levin started off his term in office by pushing for a reform that was supposed to strip the HCJ of almost all of its power to review regular laws based on their incompatibility with the basic laws. After him being a year in office, the HCJ has now clearly stated that it has the authority to judicially review even basic laws.
The Israeli public’s attention is now focused on the war in Gaza, and it is unlikely the rulings will have much immediate political ramifications. For the time being, the judgments lay to rest the already moot judicial overhaul plans. However, the basic tension within Israeli society regarding the authority of the court to exercise judicial review and who has the last word in the legal system has not evaporated, and it is sure to return after the war ends.
Is there something that can be done to resolve these tensions? The HCJ’s retiring president, Esther Hayut, seemed to provide one possibility. In her judgment in the reasonableness case, Hayut wrote that if the procedure for amending basic laws would become stricter, making it significantly more difficult to change basic laws, the court might reassess its position with regard to its power to exercise judicial review over basic laws. In this statement she probably referred to the compromise that President Isaac Herzog offered, which suggested a strict procedure for amending basic laws and immunized these laws from judicial review once they passed this strict procedure. Other justices on both cases also stated that enacting Basic Law: Legislation that requires a special Knesset majority in order to pass or amend basic law is essential. Any government formed after the war should put this task high on its agenda, lest postwar Israeli society returns quickly to the internal bickering that almost tore it apart before the war.
This article was published in Lawfare.