Knesset Speaker Yariv Levin (Likud) on Tuesday morning sent a letter to Supreme Court President Esther Hayut ahead of a hearing scheduled for Tuesday in the High Court of Justice of petitions against Israel’s Nationality Law, warning against any judicial intervention in basic laws, which comprise Israel’s constitutional foundation.
“The Knesset is the legislature and it also holds the authority of the Constituent Assembly. The Supreme Court draws its authority from the Knesset and not the other way around,” Speaker Levin wrote. “The very debate in the Supreme Court on matters of basic laws is a challenge to the most basic democratic principles of the sovereignty of the people, the separation of powers, and the rule of law. Any ruling concerning an intervention in the Basic Laws passed by the Knesset would be given without authority and would therefore be invalid.”
Levin called the upcoming hearing “an attempt to impose the worldview of the Supreme Court judges as if they were the rulers of the land.”
This is the second constitutional clash between the Supreme Court and the Knesset in less than a year. Back in March, after then Knesset Speaker Yuli Edelstein (Likud) refused to obey the High Court of Justice’s order to set a date for a Knesset session intended to replace him. Five High Court justices unanimously ordered Edelstein to convene the plenary and hold the debate requested by the center-left-Arabs bloc of 61 MKs, which would have resulted in his replacement.
Edelstein replied to the High Court’s call by saying that “with all due respect, to the extent that the honorable Court sets an ultimatum before myself and the Knesset, requiring me to hold the debate ‘no later than March 25, 2020,’ I am unable to comply. After all, this would mean that the Knesset’s agenda is determined by the Supreme Court and not by the Speaker of the Knesset, to whom this role is assigned.”
Edelstein concluded his lengthy reply, saying: “Therefore, I believe that the court’s intervention in the Knesset Speaker’s discretion to determine the plenary agenda and to bring to a vote the subject of his election is a precedential intervention in the political agenda, and in the Speaker’s discretion, and is incorrect in these times. Due to the special circumstances, at this stage I find it difficult to set an exact date, but I intend to add the issue to the Knesset’s agenda as the political situation becomes clear. Hopefully, this will happen in the shortest period of time.”
As we reported in March (In Bloodless Coup Victorious High Court Appoints Amir Peretz to Replace Edelstein) Edelstein resigned his speakers’ post a short while, and the High Court of justice ordered the transfer of the authority to convene a Knesset plenum to the house’s eldest MK, Amir Peretz (Labor).
On Tuesday, Prime Minister Benjamin Netanyahu referred to the upcoming court hearing of 15 petitions filed against the Nationality Law, by an expanded panel of 11 judges, saying: “The court has a very important role in a democratic regime, but it is not an absolute ruler.”
Netanyahu added: “The court has no authority to discuss the validity of basic laws because the basic laws enacted by the Knesset are the highest constitutional norm in the country.”
Netanyahu explained: “The court accepts its authority to rule by virtue of a basic law and it cannot judge the source of its own authority.”
Defense Minister and Alternate Prime Minister Benny Gantz called Speaker Levin’s letter to Court President Hayut a threat to the principle of the separation of powers, which makes one wonder if the former chief of the IDF staff understands the meaning of separation of powers (which is not like sending the armored corps and the infantry in two different directions).
Ganz tweeted on Tuesday morning: “Netanyahu and Levin’s threats to the court are dangerous to democracy and dismantle the separation of powers. They have not succeeded in this to this day and we will make sure that they do not succeed in the future.”
Basic Law: Israel as the Nation-State of the Jewish People, a.k.a. the Nationality Law, adopted by the Knesset on July 19, 2018, with 62 in favor, 55 against, and two abstentions, essentially set down the foundations of the “Jewish” part of the entity “Democratic and Jewish State,” following the March 17, 1992, Basic Law: Human Dignity and Liberty, which defines the “Democratic” part. That basic law was passed on the final days of the 12th Knesset, with 32 voting for and 21 against – not a whole lot of votes for constitutional legislation.