Israel’s Supreme Court rejects an attempt to curb his power

Israel’s Supreme Court on Monday overturned a law limiting its powers, a momentous step in the legal and political crisis that gripped the country before the war with Hamas, pitting the court against Prime Minister Benjamin Netanyahu’s right-wing government.

The court’s 8-7 ruling has the potential to throw into disarray Israel’s emergency national government formed after the October 7 attacks and stem serious domestic unrest that began a year ago over the Netanyahu judicial review plan government to reignite. Mass protests brought the country to a near standstill at times, during one of the deepest political upheavals Israel had faced in its 75 years, and led to warnings of a possible civil war.

The court, which met with a full panel of all 15 judges for the first time in its history, rejected the law passed by parliament in July that banned judges from using a certain legal standard to overrule ministers’ decisions.

The decision comes at a precarious time for Israel, which is deeply embroiled in a brutal war in Gaza and under almost daily rocket fire from Iranian-backed militants along its northern border. The country is trying to convey a strong image of its enemies, but is shaken by the October 7 Hamas-led surprise attack, by a shrinking economy and by the alarm and pressure from its closest allies over the deaths of thousands of civilians in the country . Gaza.

The long-awaited decision did not come as a total surprise to the Israelis. A television station reported last week on a leaked draft of the ruling. But it heralds a potential confrontation that could fundamentally reshape Israeli democracy, pitting the power of the government against that of the judiciary.

The division over the law is part of a broader ideological and cultural impasse.

Netanyahu’s political allies and their supporters want to turn Israel into a more religious and nationalist state. Their opponents, who harbor a more secular and pluralistic vision of the country, accused the government of undermining democracy by lowering barriers for a majority to do as it pleases.

The ruling was quickly denounced by Netanyahu’s allies, who in late 2022 formed the most right-wing and religiously conservative government in Israel’s history. The prime minister’s Likud party said the decision was “contrary to the nation’s desire for unity, especially in times of war.” In a statement, the Court denounced the ruling on the issue of when Israeli soldiers “fight and endanger themselves in battle.”

Yariv Levin, the Israeli justice minister widely seen as the architect of the judicial review, vowed to resume efforts to pass the package of controversial bills that included the recently quashed measure. He accused the Supreme Court of sowing division at a time when the nation is in danger.

“The Supreme Court justices’ decision to release their ruling in the middle of a war is the opposite of the spirit of unity we need today so that our troops on the frontlines can succeed,” Mr. Levin said.

Critics of Mr. Netanyahu and his allies have argued that the government’s fixation on weakening the independence of the judiciary actually contributed to Israel being blindsided by the October 7 Hamas attack that launched the war and killed 1,200 people and, according to authorities, more than 240 hostages were seized.

Yair Lapid, the parliamentary opposition leader, praised the court for “faithfully fulfilling its duty to protect the people of Israel.”

Hours before the court made its decision public, the Israeli army said it would begin withdrawing several thousand troops from Gaza. Citing the mounting toll on Israel’s economy after nearly three months of wartime mobilization, Israel will send home reservists from at least two brigades this week; three other brigades will be taken back for training, potentially removing thousands of soldiers from the war effort.

At the same time, the army said it was preparing for “prolonged fighting.” Israeli army spokesman Daniel Hagari said on New Year’s Eve that he expected the war in Gaza to last “the entire next year.”

Members of Netanyahu’s coalition immediately seized on the argument that the court ruling would damage the country’s ability to prosecute the war in Gaza.

Itamar Ben-Gvir, the far-right ultranationalist who is Israel’s minister of national security, said the decision was illegal and “a dangerous, antidemocratic episode – and above all a statement that harms Israel’s war effort against its enemies. ”

For opponents of the overhaul, it was a long-awaited victory – albeit one that raised fears that the country could now slide from wartime unity to gaping internal divisions. Thousands of military reservists who said during the protests that they would refuse service if the law were passed cast aside that vow and enlisted after the war began.

Opponents of the judicial review feared that it would greatly reduce the court’s ability to prevent government overreach, and also make it much easier for the government to prosecute Mr Netanyahu, who is on trial on corruption charges , to end.

Kaplan Force, one of the activist groups that organized protests against the judicial review, welcomed the Supreme Court’s decision and called on all parties to obey it. “Today ended a chapter in the fight to protect democracy – in a victory for the citizens of Israel,” the group said in a statement.

Brothers in Arms, an anti-revision group formed by reserve soldiers, warned of the risks of national division and also called on the nation to respect the ruling.

“We support the independence of the Supreme Court,” the group said.

The court’s decision focused in large part on the concept of “reasonableness,” a legal standard used by many legal systems, including in Australia, Britain and Canada. A government action is considered unreasonable if a court finds that it was taken without considering all relevant factors, without giving relevant weight to each factor, or by giving too much weight to irrelevant factors.

The prime minister’s political allies argue that reasonableness is too vague a concept, that it has never been codified in Israeli law and that judges apply it in subjective ways.

Netanyahu’s overhaul stripped the Supreme Court of the right to use the standard to overturn decisions by lawmakers and ministers. It was the first step in a government plan to limit the authority of the country’s most powerful court.

The Supreme Court angered the government when some of its judges cited the reasonableness standard to ban Aryeh Deri, a veteran ultra-Orthodox politician, from serving in Netanyahu’s cabinet. Judges said it was unreasonable to appoint Mr Deri because he had recently been convicted of tax fraud.

The bill limiting the court’s powers amended one of Israel’s basic laws, which have quasi-constitutional status. The government argued that the Supreme Court had no jurisdiction to rule on a basic law. But on Monday, the court ruled by twelve to three votes that it did have that power, and then decided by eight to seven to strike down the amendment.

Israeli analysts say the Supreme Court has never before intervened in or overturned a basic law. The Supreme Court had discussed such laws in the past but never ruled on them.

In response to charges that the Supreme Court is overreaching, many defenders of Israel’s liberal democracy say that in a country that has one parliament building, no formal written constitution and a largely ceremonial president, the highest court is the only bulwark against the power of the government. And the standard of reasonableness, they argue, is one of the most important tools available to judges.

Members of Netanyahu’s coalition say the court is thwarting popular rule. Some had urged the court to delay its decision until after the war in Gaza is over.

The timing of the decision was crucial: two retiring judges would have been ineligible to participate in the decision if it had been handed down after mid-January. Legal analysts have calculated that without these judges, the court would have decided to uphold the law, 7-6.