Upcoming Legislation: Sept 7, Sept 12, Sept 28
👉🏽 September 7 the court will hear petitions against Likud Justice Minister Yariv Levin, on whether to force him to convene the Judicial Selection Committee which appoints new judges.
👉🏽 September 12, all 15 justices of the court will hear petitions against an amendment to Basic Law: The Judiciary, which the Coalition passed July 24, barring the judiciary from using reasonableness to reverse government and ministerial decisions.
The question being decided here is whether the law is an unconstitutional constitutional amendment that undermines Israel’s Jewish and democratic character, and thus is theoretically capable of being invalidated by the court even though it is a Basic Law. Pundits say it is unlikely that the courts will strike it down, but convening all 15 justices gives the hearing a gravitas that suggests it is a possibility.
The court is considering broadcasting the September 12 hearing.
👉🏽 September 28, the court will hear petitions against recusal/incapacitation, an amendment to Basic Law: The Government, which shields the prime minister from being removed by the court or attorney general, and which was passed specifically to protect PM Netanyahu. In a preliminary hearing in early August, Justices Esther Hayut, Uzi Vogelman and Isaac Amit lambasted the law as being clearly personal.
Basic law amendments that are personal or too narrowly focused (such as the 2020 amendment to Basic Law: Knesset, that delayed the deadline for passing the budget to allow for the resolution of political conflicts, in that case between PM Netanyahu and Benny Gantz) are subject to being struck down. The recusal bill might be ruled too personal or too narrowly focused to be legally viable.
The question here is whether the Knesset can be said to have improperly utilized its power to create a personal ruling, risking it being invalidated by the court even though it is a Basic Law. (Delaying the implementation of such a law could also potentially resolve its personal nature, as was the case with the Tiberias Law unanimously adjudicated in early August, which will only come into effect after October’s municipal elections. There is currently an injunction in place on the recusal law, suggesting its implementation might be similarly postponed.) Coalition members have said the court does not have the authority either to cancel Basic Laws or delay them. Pundits think this is the issue most likely for the courts to take on.
Other possibilities: The court might refrain from striking down any of these laws, but take the opportunity to reiterate that the court has the right to strike Basic laws that undermine Israel’s democratic character.
An article by Pamela Laufer-Ukeles, Professor of Law at the Academic College of Law and Science in Hod Hasharon, suggests that the court could also strike laws on procedural grounds, arguing that a simple majority of the government is insufficient to curtail the Supreme Court, and that such curtailment requires a constitution, adopted by a supermajority of the state, to create an explicit balance of powers.
The real question is whether the court has the right to judicial review of Basic Laws, or whether, as the Coalition feels, the court has no authority to intervene in Basic Laws.
Whether this stalemate will lead to a Constitutional crisis remains to be seen.
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