Divisive legal reforms 'damage' Israeli democracy: lawyer

by Rosie Scammell and Jonah Mandel
by Rosie Scammell and Jonah Mandel
Sep 12, 2023
Israeli Supreme Court president Esther Hayut and all 15 judges assemble to hear petitions against a key element of the government's controversial judicial reforms
Israeli Supreme Court president Esther Hayut and all 15 judges assemble to hear petitions against a key element of the government's controversial judicial reforms — DEBBIE HILL

A leading Israeli lawyer urged the Supreme Court Tuesday to strike down a controversial plank of the government's judicial reforms, saying it had already caused "severe damage" to Israeli democracy.

An unprecedented 15-judge panel convened to hear petitions against legislation which challenges the powers of the top court itself, by curbing its ability to overturn government decisions.

After a 13-hour hearing, the court gave the government 21 days to substantiate its arguments but did not set a date for a decision.

Detractors say the move paves the way for authoritarian rule, as part of Prime Minister Benjamin Netanyahu's broader judicial overhaul.

The reform package has sparked mass street protests by opponents for months, with thousands massing in Jerusalem on the eve of the hearing.

Dozens more demonstrated Tuesday as the court convened for the landmark hearing, including some government backers, chanting and waving Israeli flags.

The case combines eight petitions filed against legislation passed in July which scraps the so-called "reasonableness" clause, one of the Basic Laws which form Israel's quasi-constitution.

"We're not about to cancel Basic Laws every few days, the question should be if it's a fatal blow to the country's core Jewish and democratic values," Chief Justice Esther Hayut said during the session.

Israel does not have a constitution or upper house of parliament, and the "reasonableness" measure was put in place to allow judges to determine whether a government had overreached its powers.

Pro-government lawmaker Simcha Rothman, who oversaw the passage of a key plank of its divisive judicial reforms through parliament, was among those defending the legislation before Israel's Supreme Court

Urging the court to uphold the petitions, lawyer Aner Helman said the judicial reforms had already caused "severe damage to Israel's democratic core".

"The new amendment... causes a normative black hole in the Israeli legal system," Helman argued.

"The damage exists but you can only see it further down the road."

As well as sharply dividing the nation, the legal shake-up has prompted concern from top ally the United States.

- 'Soul of democracy' -

Netanyahu's administration, a coalition between his Likud party and extreme-right and ultra-Orthodox Jewish allies, insists that the sweeping legal changes are needed to rebalance powers between elected officials and the judiciary.

Far-right lawmaker Simcha Rothman, head of parliament's law committee which tabled the amendment, criticised the hearing.

"Why do we even need a legal procedure or ruling that will harm the soul of democracy?" he asked.

Opponents of the judicial reforms demonstrate outside the Israeli Supreme Court on the eve of its hearing of petitions against the legislation

"For years, in a gradual process of sophisticated legal arguments, the Israeli court gave itself unprecedented authorities," he said.

The government was unusually represented by a private lawyer, Ilan Bombach, because Attorney General Gali Baharav-Miara has criticised the law being challenged.

Bombach told reporters that if the court intervened in Basic Laws, then "we won't be the same democratic country we used to be".

Outside the court, protester Batia Cohen accused the government itself of seeking to "destroy democracy".

"They (government) want to be above law, so the only one that protects us from them is the court," said the 63-year-old.

- 'Fatal blow' -

Tens of thousands of Israelis have regularly demonstrated against the judicial reform package since it was unveiled in January, while there have also been occasional rallies by government supporters.

Justice Minister Yariv Levin said the hearing was a "fatal blow" to democracy because it could result in the court striking down a Basic Law for the first time.

In a statement, he accused the court of "placing itself above the government, the parliament, the people and the law."

During the hearing, Likud issued a statement that "the most important foundation of democracy is that the people are sovereign".

"If the court can annul a Basic Law, it makes itself sovereign instead of the people, an extreme act calling into question the whole principle of democracy," it added.

Government backers demonstrate their support for the judicial reforms outside the Israeli Supreme Court as it considers petitions against a key plank

Government supporters gathered outside the court expressed their backing for the amendment and for Netanyahu.

"I think the Supreme Court judges need to say we don't have the authority to intervene in Basic Laws," said Jerusalem resident David Kozlovsky, 31.

The Supreme Court has only used the "reasonableness" law a handful of times against government decisions.

In a high-profile ruling in January, judges barred Netanyahu ally Aryeh Deri from serving in the cabinet because of a tax evasion conviction.

Opponents accuse the prime minister, who is on trial on corruption charges he denies, of trying to use the legal overhaul to quash possible judgments against him.

He rejects the accusation.