In a dramatic ruling that would have meant an earthquake with several aftershocks at any time in Israel’s history, except after October 7 following the attack by the fundamentalist group Hamas, the Supreme Court (TS) has annulled the amendment to the basic law that eliminates the criterion of reasonableness. According to the text, the aforementioned legislation represented damage to “the fundamental characteristics of Israel as a democratic State.” Approved in the Knesset last July in one of the most tense sessions in recent years, it is the first basic law declared “null and void” by the highest judicial body in the history of Israel.
With eight judges in favor and seven against, the TS ruling guarantees the conservation of one of its main instruments to review decisions and appointments of the Government, prime minister and ministers. In this way, it destroys the first initiative that Benjamin Netanyahu’s Government managed to approve in the controversial project to modify the relationship between the executive and judicial branches that shook the country with massive protest demonstrations for 40 consecutive weeks in 2023.
The ruling of the TS on the first day of 2024 returns the Israelis to the political and legal agenda of the first 9 months and 6 days of last year, although not in such a polarized way nor for long due to the war that this Monday marked 87 days.
The text of the ruling – one of the last signed by Esther Hayut before leaving the presidency of the TS – includes another aspect of great importance: 12 of the 15 judges conclude that the TS can review basic laws in extreme cases that challenge the foundations of the Supreme Court. Democratic system.
The reactions did not take long to arrive but the long shadow of the unprecedented offensive against Hamas prevents a constitutional, social and political crisis. After criticizing that the sentence “has no parallel in any Western democracy” and insinuating that it will not prevent him from leading a process again in the future to correct “the excess of power of the judges before the representatives elected by the citizens”, the minister of Justice Yariv Levin lamented that “the judges’ decision to publish the verdict during the war is the opposite of the spirit of unity that is required these days for the success of our soldiers on the front.”
In the sentence, Hayut had advanced criticism about the timing. “One month after the hearing on the appeals presented against the law amendment, we suffered a cruel terrorist attack and since then Israel has maintained a tough war against terrorist groups that want to kill us but also in these difficult times, the Supreme Court must fulfill its role and decide on the issues that come to it, especially when it comes to matters related to the nuclear identity of Israel as a Jewish and democratic State,” he indicated.
Regarding the version of the annulled amendment, he added that it damages the principle of separation of powers and warns that a majority in Parliament cannot justify the limitation of checks and balances. “This is a serious and unprecedented damage to the essential characteristics of Israel as a democratic State,” justified Hayut, who did not hesitate to publicly confront Levin after he announced his judicial reform plan on January 4, 2023, a few days after the inauguration of the new Netanyahu Government.
Several weeks before the attack by the Nukba unit of Hamas that unleashed the devastating war in the Gaza Strip, also causing the total halt of Levin’s plan, the 15 magistrates held a public hearing in September with the representatives of the groups that appealed the law. and the Government. Since his legal advisor who was appointed by the previous executive, Gali Baharav-Miara, was firmly opposed to the reform and specifically to the amendment approved in the Knesset, the proposal was represented by a private lawyer.
The former prime minister and opposition leader, Yair Lapid, who unlike his former centrist partner Benny Gantz did not join the war emergency cabinet, has praised the TS ruling, considering that “it seals a difficult year of fighting that “It tore us from the inside and led to the worst disaster in our history.”
Faced with the possibility that after the war and if there are no elections as requested by the majority of Israelis according to the polls, the Government will resume the judicial reform project, Lapid added that “then they did not learn anything on October 7, they did not learn anything about 87 days of war in the house”.
On the same day that the law was approved in the Knesset, several high-ranking officials arrived at Parliament to warn Netanyahu and several ministers and deputies of the coalition that the continuation of the judicial initiative will further divide the country, also affecting cohesion in the Army. and, therefore, the deterrence capacity in the region.