There will be a major fuss kicked up in coming days claiming the Supreme Court was outrageous in invalidating a “Basic Law” – as it did on New Year’s day, when it struck down the July Knesset decision to eliminate “reasonableness” as a concept in Israeli jurisprudence.
Indeed, Benjamin Netanyahu and Knesset Speaker Amir Ohana had warned the Supreme Court in the halcyon days before the October 7 Hamas massacre that invalidation of a Basic Law would be a violation of norms, and the prime minister systematically avoided promising he would respect such a decision. A constitutional crisis appeared to loom – even before the current existential one.
Most people are not expert in the ins and outs of Israel’s “Basic Laws. Listening to these politicians speaking with such gravity and confidence, many might have be tempted to believe that these are somehow sacrosanct, and that overturning them would be an extraordinary chutzpah, confirming the claims of “activism.”
Now that this has happened, it is important to understand the actual situation, and how it compares to what happens in other democratic countries.
Understanding the situation
As we know, Israel lacks a constitution, because the religious parties won’t allow one, considering the Torah sufficient. This is dangerous, because constitutions are the best way to secure the rights of citizens and to ensure that a random parliament majority not abuse them with crazy laws.
Why can the US congress not pass a law declaring it illegal to employ redheads? Because of the US constitution. Israel doesn’t have one, and the Torah is of no assistance, and there is also no law expressly disallowing it – but “reasonableness” does.
That has been part of Israel’s solution, and it is familiar from many common-law countries – including England, Canada, Australia, New Zealand, South Africa, India, and Singapore and other places which like Israel inherited British law through colonization. It enables courts to weigh in during extreme situations: Did the government give weight to relevant considerations? Was the decision motivated by improper or irrelevant considerations (like nepotism)? Did it ignore primary considerations?
Another solution has been , indeed, to enact semi-constitutional “Basic Laws”. The idea is that these laws offer guardrails against abuses, and subsequent laws cannot contradict them. This is not unreasonable either. Other countries use this workaround, and one of them is no less than Britain itself, which some would claim is the mother of modern democracy. It too has no actual and formal constitution.
Here’s the difference, though. In most cases a special majority is needed to enact constitutional laws, bestowing a logical legitimacy to the limitations they impose and reflecting some sort of broad consensus. Once such provisions exist, a special majority (perhaps two thirds of three quarters) is required to amend them – again lending the whole arrangement the possibility of permanence, and a genuine special status backed not only by claims but by practical procedures and something approaching consensus.
In the United States, amending the constitution is very serious business, and the bar is almost impossibly high. Changes need to be proposed either by a two-thirds majority vote in both the Senate and the House of Representatives (or by conventions organized by two-thirds of state legislatures), then must be ratified by 38 out of 50 states. Because of this, a decades-old effort to declare women equal has failed to pass (the Republicans scuttled it just months ago).
Amendments to the German constitution can only be made if they are approved by a two-thirds majority in both the Bundestag (the federal parliament) and the Bundesrat (the federal council, representing the states). Japan requires a two-thirds majority in both houses. And so on. There are some exceptions, it must be conceded, in countries like New Zealand. In that country, there is high social cohesion, and the respect for decency and public legitimacy is so high that lunatic laws are unlikely.
In Israel, which is sadly not such a country, Basic Laws can be passed with regular parliamentary majorities, and in most cases can be amended the same way. That majority can be a 1-0 vote; that legislator voting could be Itamar Ben-Gvir. The only thing that makes them “basic” is that they were declared as such. That’s really it.
Indeed, the law in question, cancelling the “reasonableness doctrine,” was passed with a simple majority (the 64 coalition members who voted unanimously in favor including lemmings who knew it was wrong, versus 0, because the opposition walked out in protest). The other horrible laws the coalition had planned, like allowing parliament to ban the opposition from running in elections without judicial review, would all also have passed with a simple majority, were it not for the Hamas attack which made voluntary and divisive outrage politically unsustainable.
This is not a situation which commands great respect for these “Basic Laws.” But Netanyahu and Ohana say that respect must exist anyway, because the law allows such Basic Laws to pass, and respecting it and pretending these laws are special are “norma.”
Well, the Supreme Court in Israel is allowed by law to strike down these damaging and outrageous laws, whether they are declared “basic” or not. And what of “norms”? Talk of norms is rather rich coming from the man who insisted on serving as prime minister while on trial for bribery. The law enabled that too, as did the decidedly non-activist Court – but it was certainly not the “norm.”
Critics say the 8-7 Supreme Court decision was too close – even though a reading of the written arguments shows even those voting against understood the severity of the Knesset decision and opposed it. And the critics’ argument ignores the similarly close nature of the Knesset vote in favor, which stems from its essential nature.
The current government came to power as a result of a tied election in which the opposition idiotically splintered and caused 6% of the vote – an eighth of its side! – to be invalidated, handing a small majority to Netanyahu. He proceeded with trademark hubris to act as is this was a massive mandate to create all-powerful government in Israel, like in Russia and other fake democracies.
He ignored the warnings from far and wide – the heads of the security establishment, the opposition, leaders of many business sectors and Israel’s friends around the world – that the schism this created in Israel would damage it economically and threaten its security. Indeed, on October 7 Israel’s enemies staged the worst attack on Israeli civilians in history. The government was preoccupied.
Its miserable days now seem numbered, but the Netanyahu government appears undeterred. In reaction to the Supreme Court’s decision Monday, ministers again were talking about “judicial reform” and how the people are split about it. It’s not exactly a split: every poll shows huge majorities opposed to Putinizing Israel.
But I have an unusual proposal. I say let the government, once it finishes its budgetary shenanigans and it if takes some time off from its jackhammer propaganda against its opponents as well as the military, carry out a real judicial reform. A useful judicial reform. I’d hate to deprive them the opportunity altogether.
You want a judicial reform? Change the ridiculous Basic Laws setup to require a supermajority to pass and amend them. The opposition will support it. And there’s your one opportunity, after a year of recklessness and ruin, to do a good thing for the people of Israel.