The High Court of Justice announced on Thursday evening that it would hear a petition filed by the Movement for Quality Government in Israel against the Knesset’s amendment of the Basic Law: Government to include the rotation government.
The High Court also demanded from the respondents, including Prime Minister Benjamin Netanyahu and Alternative Prime Minister Benny Gantz, to explain within 21 days why the amendment, which facilitates the role of Gantz as alternate prime minister, not be revoked.
The High Court decided to expand the panel hearing the petition to nine judges.
The decision to compel the government to respond to the petition was made after about two weeks ago the High Court discussed the question of whether the petition can be debated at all.
Likud officials are saying that if the court intervenes in the rotation amendment they would go to new elections. Also, dispersing the Knesset in response to a high court ruling keeps the reins of the caretaker government in Netanyahu’s hands. No fuss, no muss, no Gantz.
The High Court’s demand does not necessarily indicate that the judges intend to repeal the amendment to the Basic Law allowing the formation of the rotation government. To date, High Court judges have disqualified or demanded amendments to ordinary laws, but have been careful not to interfere with basic laws, of which there are 14, and which are considered the constitutional laws of the State of Israel. Some of them can only be changed by a supermajority vote in the Knesset.
At the hearing of petitions against the Dismissal Law, an amendment to the Basic Law: The Knesset, which requires a majority of 90 MKs to disqualify an incumbent MK, Supreme Court President Esther Hayut defined the preconditions to disqualifying a Basic Law. She said a constitutional law can be invalidated when “it denies the core of the democratic identity of the state, and shocks ‘the foundations of the constitutional structure.'”
Like we said, so far the court has not gone after a basic law, whether it shook the foundations or not.
Expanding the panel of judges to nine in the next hearing on the petition against swearing-in two concurrent prime ministers hints at the possibility that the High Court will decide to intervene in the Basic Law and wishes to present a big front in support of this unprecedented move (8 in favor, Justice Alex Stein predictably against – DI).
Some legal experts have suggested the opposite: by expanding the panel Supreme Court President Hayut is aiming to issue a dramatic decision to the contrary, denying once and for all the possibility of the High Court interfering in basic laws.
And those who believe this view should also expect the Supreme Court to compel the Israeli government to provide a unicorn for every citizen, color optional.
Next month, the High Court of Justice is expected to hear petitions to disqualify another basic law – the Nationality Law. A broad rejection of a Basic Law amendment on rotation government would prepare the ground for the repeal of the entire, constitutional, Nationality Law.
Another hint? The judges ruled that the government and the Knesset must explain the legality of the section in the Basic Law amendment, which was formulated as part of the coalition agreement between Blue&White and Likud, limiting the Knesset’s authority to hold no-confidence votes. And the justices also demanded that the government and the Knesset explain the legality of the section in the law that stipulates that a change in this Basic Law requires the support of at least 70 MKs.
You got it, right? The last thing the High Court will do is limit its right to interfere in the functioning of the Knesset.
On the other hand, in a hearing on the same petition last month, Justice Hayut raised reservations about the possibility that the court would overturn basic laws.
“The court has never repealed a Basic Law or an amendment to a Basic Law on the ground of being unconstitutional,” she said. “This is a doctrine that is not recognized in most countries of the world.”
According to her, “there is a big question as to whether to adopt the doctrine (of disqualifying basic laws – DI), certainly here, where there is no constitution at all.”
This implies that the High Court wants to decide definitively whether Basic Laws are equal to a Constitution, following which the justices would disqualify the rotation government amendment to the Basic Law: Government.
This is the salami method of Aharon Barak, the former president of the Supreme Court who turned the intervention in state laws into a contact sport.
Knesset Speaker Yariv Levin responded to the High Court’s decision to hear the petition, saying that “the High Court in its scandalous decision prepares the ground for crossing the red line of interference in basic laws. Such an intervention is done without any authority, in a way that is contrary to the most basic principles of democracy and is therefore fundamentally null and void. Each such step of the High Court expands public support for changing the method of electing judges, and for removing them from the system justices who take advantage of their role to trample on democracy.”
Them is fightin words, brother Levin…
The petitioner, the Movement for Quality Government in Israel, announced that “a change in the system of government in the State of Israel must not be done in a way that will serve a defendant with three indictments, who is trying to escape the arm of the law. The Supreme Court has a duty to protect the democratic structure of the State of Israel, and not to allow fatal damage to the foundation of the system in the State of Israel.”
In other words: in order to protect the democratic structure in Israel, the court must completely trample on the idea of Separation of Powers.