Israel’s parliament on Monday passed a controversial law stripping the Supreme Court of its power to declare government decisions unreasonable, the first bill in a wide-ranging judicial overhaul that analysts say is likely to deepen the crisis the country is facing.
The bill amended an Israeli Basic Law governing the judiciary by taking away the court’s power to veto government decisions under the legal doctrine of “reasonableness.” Millions opposed the change, according to opinion polls, which critics said would erode the independence of the courts and harm Israel’s democracy.
Israel’s parliament, the Knesset, passed the law despite months of protest and heavy pressure from Israel’s closest ally, the United States. The bill passed by a vote of 64-0. All members of the governing coalition voted in favor, while all opposition lawmakers walked out of the chamber in protest as the vote was taking place.
Like the British system of government, Israel doesn’t have a written constitution. Instead, it relies on 13 Basic Laws, as well as court ruling precedents that could one day become a constitution. That leaves the Supreme Court as the only check on the executive and legislative branches of government, a power that Monday’s vote has curtailed.
Experts expect the court to likely strike down the amendment, which could lead to a showdown between the government and the judiciary.
From escalated protests and possible military disobedience, to attempts by the court to rule the new law as invalid, coming days and weeks will test Israeli Prime Minister Benjamin Netanyahu and his far-right coalition’s readiness to defy public opinion.
Here’s what may happen next:
Several groups have appealed to the Supreme Court to strike down the law, and experts said the court is likely to take up the case.
If it does, the first step could be a temporary block on the law, which would prevent it from being implemented until the court assesses its legality.
Striking down a Basic Law would be uncharted territory for the Supreme Court, although the court has examined and commented on Basic Laws before.
In 2021, the court outlined very narrow circumstances under which a Basic Law can be annulled. A number of petitions were filed challenging the constitutionality of the Nation State Law. While the court did not strike down the law, Supreme Court President Esther Hayut said that “there is one restriction, exceedingly narrow, which is incumbent on the Knesset in its function as the constituent authority, that it is unable to revoke Israel’s essence as a Jewish and democratic state through a Basic Law.”
The court could strike down a Basic Law if it endangers democratic principles such as those that deal “a mortal blow to free and fair elections, core human rights, the separation of powers, the rule of law, and an independent judiciary,” Hayut said.
Barak Medina, a professor at the Hebrew University of Jerusalem’s Faculty of Law, said the court could potentially justify striking down the law through the principle of Israel’s core values of democracy.
“(It) is what is sometimes called an unconstitutional constitutional amendment,” Medina told CNN. “It says that the Knesset is limited in that it is required to respect the core values, the core aspects of democracy.”
The court could challenge the law using this doctrine, given the bill’s “substantial curtailment of the powers of the court,” he said.
While the court may attempt to challenge the law on these grounds, the process will be difficult due to the nature of Israel’s legal system.
“Israel is in a unique situation because we do not have special procedures for constitutional amendments,” Yohanan Plesner, President of the Israel Democracy Institute in Jerusalem, told CNN. “Because we don’t have a constitution, one of the things we missed…are special procedures for Basic Laws.”
Plesner notes that this makes Israel’s legal system “particularly vulnerable to constitutional abuse,” as with a simple majority one can make “far-reaching constitutional changes” or even declare an amendment constitutional when it is not.
This “extra flexibility,” he said, has traditionally created more room for “court intervention and court interpretation.”
Asked on Tuesday by CNN whether the Israeli government would abide by a Supreme Court ruling striking down the law, Israel’s Minister of Strategic Affairs Ron Dermer said: “The government will always obey and abide by the rule of law in Israel … Because we have in Israel the rule of law. What we don’t have is the rule of judges. We have the rule of law.”
Is Israel on the brink of a constitutional crisis?
The Supreme Court may be influenced by what’s happening on the streets of Israel, experts said, as protests and strikes are expected to escalate.
“Courts do not operate in isolation of what is going on in society,” Medina said. “The current situation in Israel – the fact that we are in an unprecedented crisis, internal crisis – is something that the court is well aware of.”
Thousands surrounded the parliament and Supreme Court building on Monday, and on Tuesday the Israel Medical Association said it would strike for 24 hours in response to the law, which the association chairman called “broad and dangerous.”
The law “will have serious consequences for the health system, patients and doctors,” the IMA said.
In the streets, protesters have pledged to continue the fight against the package of judicial reforms.
“We started a determined struggle seven months ago to save high tech and the Israeli economy. Yesterday was a dark day, the first step in damaging the status of the court, but it is important for us to say that we are not giving up, not on our country, not on the economy, and not on the amazing industry we have built here over the past 30 years,” read a statement from the High Tech protest group, which represents some leaders in the country’s tech and startup industry.
Unless the crisis is resolved, Plesner said, Israel will continue on a plateau that may have dangerous implications on the long run. Israel is not however expected to see additional votes on other overhaul bills until the Knesset reconvenes in October.
Netanyahu on Monday said that his government was “ready to discuss everything immediately, and do it in the round of talks during the recess and reach a comprehensive agreement on everything, and if necessary, we will add more time, until the end of November.”
In pictures: Israelis protest as lawmakers plan judicial overhaul
Opposition to the overhaul has also spread to Israel’s security establishment, with thousands of members of the military protesting the law including more than 1,000 Air Force reservists threatening to stop volunteering.
After Monday’s vote, Netanyahu called on the military to stay out of politics and urged reservists not to refuse to serve, as some have previously done in protest of the overhaul.
Plesner said dissent within the military could pose a security risk to Israel as “not an insignificant portion of the reserve force is basically retiring from service in protest.”
“This is not something that can be ignored and leaves a sense of crisis,” he added.
If, however, there is an open clash between the government and the judiciary, where choosing sides becomes inevitable, the army is likely to side with the courts, Medina said.
The military’s decisions may also act as a “deterring effect” on Netanyahu’s coalition, he added.
“In the past, Israeli governments, all governments of all shapes and colors, wouldn’t have disregarded the pleas of the leaders of the defense establishment,” Plesner said, noting that the deepening divisions in society have a direct impact on Israel’s security.
“The government was aware of that and decided to ignore it,” he said. “And this is very surprising.”
While threats to Israel’s national security have previously mended splits in Israeli society, they may not be sufficient to resolve collisions over the overhaul, analysts say.
Unless there is an immediate threat, “the protest movement will be resilient,” Medina said.
The White House described Monday’s vote as “unfortunate” and called for “consensus” amid protests.
“As a lifelong friend of Israel, President Biden has publicly and privately expressed his views that major democratic changes to be enduring must have as broad a consensus as possible,” White House Press Secretary Karine Jean-Pierre said after the passing of the vote. “It is unfortunate that the vote today took place with the slimmest possible majority.”
Dermer, the Israeli minister, told CNN on Tuesday that Biden hadn’t directly asked Netanyahu to scrap the legislation.
In an interview with the New York Times, Martin Indyk and Dan Kurtzer, former US ambassadors to Israel, said it was time to start reconsidering US aid to Israel, which according to the State Department amounts to over $3.8 billion annually.
The US has never publicly considered withdrawing aid to Israel, but American lawmakers have been calling for the aid to come with conditions.
In an interview with CNN Monday, Indyk said Israel hasn’t before faced “this kind of threat to its unity caused by an extremist government.”
“It’s very dangerous not only for Israel’s internal cohesion but for the message it sends its enemies.”