Photo Credit: Yonatan Sindel/Flash90
Supreme Court President Esther Hayut during a court hearing of petitions against the incapacity amendment to the Basic Laws, August 3, 2023.

Former Supreme Court President Dorit Beinisch left office on February 28, 2012. On February 21, a week before her departure, the court revoked in a 6 to 3 decision the Tal Law which regulated the IDF conscription of Haredi men. The Beinisch court argued that over ten years, the Tal Law’s rate of conscription was too slow: only about 3,000 recruits a year.

The Beinisch decision threw the country into a whirlwind that led to the resignation of several governments, at least six elections, a growing schism between the Haredi community and the rest of the country, and an escalation of expressions of hatred toward Haredim in the secular public the country had never known before.


But that parting gift was a sweet gesture of affection compared to the potential civil war into which Court President Justice Esther Hayut is leading the country on the eve of her October 26 departure.

In a month or so, the High Court of Justice will debate the reasonability amendment. On Thursday it dealt with the incapacity amendment. That’s two Basic Laws in as many months. In both cases, should the honorable justices decide to knock down one or both Basic Law amendments, there’s no telling what the repercussions might be. Will Netanyahu accept the rulings and risk being rejected by many in his base? Will Netanyahu face a move for his removal by the Attorney General, now that the incapacity amendment exposes him? Will Netanyahu initiate new legislation to compensate for the court’s annulments?

And what would the masses on the left and the right do in reaction to all that, in a country where hatred between the two camps has reached catastrophic dimensions? What would Israel’s enemies do meanwhile?

To answer those questions would require a prophet, and until God in His eternal wisdom and mercy sends us one, I am limited to reviewing the events that may or may not have led to the demise of the Jewish State, with Esther Hayut as one of the horsepersons of the Apocalypse.

On Thursday, a three-judge panel led by Hayut for the first time in the court’s history, heard a petition to revoke the amendment of a Basic Law regarding the protocol of declaring a prime minister incapacitated.

The amendment was composed and voted on in a hurry, to prevent Attorney General Gali Baharav-Miara from declaring Prime Minister Benjamin Netanyahu “incapacitated.” The bill was submitted ahead of an expected hearing at the High Court of Justice on a petition demanding Netanyahu’s removal from office.

A week before, the High Court ordered the AG and the PM to respond within a month to the petition of the Movement for Quality Government in Israel, which demanded that Netanyahu be declared incapacitated over his involvement in the judicial reform.

The quickly-drawn amendment clarified that the term “incapacity” refers only to the PM’s medical condition. Nothing else about his actions would render him unfit for office.

PM Netanyahu’s attorney Michael Ravillo arrives at the High Court hearing on petitions against the incapacity amendment to the Basic Laws, August 3, 2023. / Yonatan Sindel/Flash90

Since the establishment of the State of Israel, no supreme court has ever debated, never mind ruled on a Basic Law. This principle was heralded by the most revolutionary Supreme Court President of all times, Justice Aharon Barak. The court can’t rule on a Basic Law because it constitutes part of the country’s constitution. Since the court interprets laws based on the Constitution, it can’t alter the Constitution.

Early on, under Israel’s founding father and first prime minister, David Ben Gurion, it was decided not to write a constitution for the fledgling country. There were many good reasons, most notably the yawning ideological gaps between right and left and religious and secular which Ben Gurion did not want to spend his time mending. There were too many existential concerns at the time, such as millions of Arabs within and without who were sworn to annihilate us, and the fact that the country was absorbing three times its initial population in three years.

And so, it was decided that Israel’s constitution would be composed over the years as a collection of standalone Basic Laws that touch on every aspect of government in the free Jewish State.

It was a brilliant idea that should be cited as the best-ever show of procrastination in human history. But as time went by, the legislature was forced to change those Basic Laws time and again, to comply with ever-changing political needs. Incidentally, the largest number of Basic Law alterations took place during the Lapid-Bennett government, chief among them the amendment allowing the government to be headed by two alternating prime ministers.

At no time during those alterations did the Supreme Court intervene, viewing them as the unavoidable chiseling of the Constitution over time, just as Ben Gurion had intended.

And then, last month, High Court Justice Daphne Barak-Erez accepted a petition to revoke the incapacity amendment to the Basic Laws. It should have been rejected. It wasn’t. And on Thursday, a three-judge panel that included the court’s two most activist justices heard arguments regarding that same petition.

The judges were especially combative regarding their assertion that the amendment was “personal.” They were right, it was. Normally, the way the legislators avoid this stumbling block is to set the law to take effect only in the following Knesset. But this time they couldn’t. The AG was in the midst of a conspiration to use the vague language in the incapacity clause to suggest that the fact PM Netanyahu is helping to promote his government’s judicial reform––albeit unofficially and behind closed doors––defies Netanyahu’s commitment to the Supreme Court that he would stay away from judicial issues on account of the criminal case against him.

It was the precondition for the court to allow him to run for office and then, having won in an Israeli landslide, to take office.

It didn’t help that, moments after the incapacity amendment had been passed, Netanyahu declared victoriously: “I’m letting you know: that’s it. I’m entering the event. I’ll do everything I can to reach a solution” for the much-disputed judicial reform.

The next day, the AG informed Netanyahu that he violated the ruling of the High Court of Justice when he publicly announced he would start dealing with the judicial reform. She wrote: “Your statement and any action taken by you contrary to what was stated is illegal and tainted by a conflict of interest.”

Here’s a fun fact: Netanyahu’s statement ushered in several months during which he did his best to shrink Justice Minister Yariv Levin’s reform down to a single, unimportant amendment to another Basic Law, depriving the courts of using the doctrine of “extreme lack of reasonability” against government actions.

In other words, he was slammed by his enemies for trying to do their bidding.


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