Israel’s Supreme Court Wrangles Over Divisive Law Curbing Its Own Powers

Justices of Israel’s supreme court clashed with government lawyers and politicians on Tuesday during a high-stakes hearing over Prime Minister Benjamin Netanyahu’s controversial judicial overhaul. 

For the first time in Israel’s history a full 15-member bench of the high court gathered to hear petitions opposing Netanyahu’s so-called “reasonableness” law, which limits judicial review of government decisions and has sparked months of furious protests. 

Netanyahu’s administration has asserted that the high court doesn’t have the standing to reverse the judicial overhaul because it involves changes to Israel’s quasi-constitutional Basic Laws — and judges lack the power to review Basic Laws. 

Justice Minister Yariv Levin, an architect of the judicial reforms, said the Supreme Court session examining the law was itself "a mortal blow to democracy and the standing of the Knesset," Israel’s parliament.

"Can you really hold a discussion of this question, without bias or predisposition, given that it is a matter of your status, your honor?" Simcha Rothman, a lawmaker in Netanyahu's far-right coalition, asked the court.

Chief Justice Esther Hayut said the hearing had nothing to do with the individual justices. "We are not addressing ourselves — neither our status nor our honor,” she said.

“We are addressing the public's vital interests."

Tuesday's hearing put Israel’s top judges in the unprecedented position of deciding whether to accept limits on their own powers.

In July, the Knesset passed a law curbing the court’s ability to strike down government moves it deems to be “unreasonable.” For decades, Israeli judges have used that legal standard to prevent government actions viewed as unsound or corrupt.

Netanyahu is currently on trial in three long-running corruption cases.

Without a formal written constitution to refer to, arguments over the judicial law and the high court’s standing to review it touched on Israeli history going back to the founding of the Knesset and the country’s declaration of independence in 1948.

Some justices asserted that, since the declaration of independence defines Israel as a Jewish and democratic state, the Knesset cannot pass legislation, even amendments to the Basic Laws, that impinge on the state’s Jewish or democratic character—giving the high court authority to review such laws.

Ilan Bombach, an attorney selected to represent the government after Attorney General Gali Baharav-Miara refused to defend the judicial overhaul, replied that it was "unthinkable" that the declaration should “bind all future generations,” the Times of Israel reported.

“Because 37 people were authorized to sign the hasty declaration of independence, which was still in draft stage until the last moment, this should bind people who came later?” he asked the court, noting that the signatories were unelected. 

Netanyahu has refused to say if his government would recognize a decision striking down the new law. Some members of his coalition, including Justice Minister Levin, have hinted the coalition could ignore the court’s ruling. A decision could be weeks or months away.