Photo Credit: Yonatan Sindel/Flash90
Supreme Court President Esther Hayut

The High Court on Sunday ruled on petitions against the NIS 11 billion ($3.4 billion) increase in the budget that had been passed through an amendment to the Basic Law: The Knesset by the previous Knesset.

The Basic Laws were originally intended to be draft chapters of a future Israeli constitution, but the actual process of drafting a constitution has been on hold since 1950. For the past 70 years or so, the Basic Laws act as a de facto constitution until their future incorporation into a formal, unitary, written constitution (can you say, Never?). Israel is one of 6 countries (along with Canada, New Zealand, San Marino, Saudi Arabia, and the UK) that whose constitutions are fluid and involve both fundamental and precedent laws.

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If Israel’s Basic Laws (there are 14) are the country’s closest thing to a constitution, and a constitution is a fundamental document that cannot be modified without a special parliamentary process, then they should be outside the purview of the Supreme Court. However, in this case, it was the Knesset that broke the hands-off rule first, by amending a Basic Law.

Complicated? You ain’t seen nothing yet.

The Knesset added NIS 11 billion to the budget as a temporary provision – legislation whose validity was limited in advance, in contrast to the rest of the laws and regulations, which remain in force as long as they are not repealed or amended. The reason the Knesset was forced to do this was that over the past two years or so, Israel either hasn’t had an elected government, or the government hasn’t been able to agree on a budget.

In the absence of a budget, the government continues to operate with the last budget that has been passed – in 2019: each ministry takes its 2019 annual budget, divides it into 12 monthly portions, and that’s what it has to live with. Never mind that its needs may have changed tremendously. Hence the amendment of the Basic Law: The Knesset.

Now, even though the majority justices (it was 6 to 3) ruled that increasing the continuing budget through an amendment was an abuse of the constitutive authority of the Knesset, they also decided that since the 2020 budget year has ended and the Finance Ministry told them most of the financial supplement had already been distributed, the court did not repeal the amendment to the law, but were content with a “warning of nullity” that warns the Knesset against further similar legislation.

And that I where the real dog is buried. Because, beyond the concrete decision, the court has issued a historic, even revolutionary ruling with far-reaching consequences. The justices have announced that from now on they have the power to intervene in a basic law if they perceive an abuse of the constitutive authority of the Knesset.

The court, in effect, has appointed itself the supreme leader of Israel.

Court President Esther Hayut wrote that any legislative amendment of a Basic Law could be examined in accordance with the legal “constitutional fabric.” In other words, the court can decide that the amendment defies the norm—as the court sees it—and kill it.

President Hayut also wrote in the Sunday ruling: “The State of Israel was – and still is – in the midst of an unprecedented political crisis and it seems that the Basic Laws, as well as the state budget, have become pawns in this crisis.”

Justice David Mintz, who was in the minority (together with Yosef Elron and Noam Sohlberg), wrote: “In my opinion, the petitions should be rejected in its entirety. I do not believe that our role is to ‘grade’ the Knesset, especially when it comes to constitutional legislation it has issued as the Constituent Assembly. The question is not whether this is a benevolent or ideal arrangement, nor even if it is a problematic arrangement or worthy of criticism. The only question is – is this an arrangement that justifies the intervention of this court. And in this case, in my opinion, the sweeping answer is no.”

Religious Zionism chairman MK Bezalel Smotrich wrote in response to the High Court ruling: “‘When a person transgresses and repeats his transgression, it becomes permitted to him (Kidushin 40a.’ The High Court repeals a Basic Law without batting an eyelid. Yes, you are reading correctly, a Basic Law! And as usual, with sophistication and without upsetting the public enough to cause an uproar. After all, it’s ‘only’ a warning of nullity. But the principle is set. Now the High Court can repeal the Nationality Law, and, come to think of it, any law that it does not like.”

Precisely. And that’s a very bad thing. Of course, had Israel had a right-wing government over the past 12 years, led by a staunch defender of the Knesset’s powers against an arbitrary court, this would never have happened.

Or, as Knesset Speaker Yariv Levin (Likud) said in response to the ruling: “The High Court’s decision to issue a nullity notice regarding a Basic Law is a shocking decision deprived of all authority. We witness a crazy event when a handful of six people cover themselves up with the robes of justices to carry out a coup. This is a decision that has no validity, as it is contrary to the most basic principles of the sovereignty of the people, the separation of authorities, and the rule of law. I will stand in full force in the face of the attempt to abolish democracy and defend the status and authority of the Knesset.”

Like I said, if only we had a right-wing prime minister who fought to advance the Override Law that curbs the court’s power to intervene in Knesset legislation. Does Speaker Levin know of such a leader? We should make him the leader of Likud and ask him to run at the top of its slate.

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David writes news at JewishPress.com.