The Supreme Court of Israel protects the independent judiciary
That the Supreme Court of Israel issued its decisive opinion knocking down the narrow governing coalition of Prime Minister Bibi Netanyahu’s terrible plan to undermine the country’s independent judiciary in the midst of a national mobilization for a war with Hamas is exactly what independent judges are supposed to do.
The ruling, the correct one, will strengthen judicial power and help keep elected government accountable. Just as the laws of war must be obeyed on the battlefield, as Israel fights a terrorist group that routinely violates those accepted norms by intentionally targeting civilians, taking hostages, and using rape and sexual violence as weapons, the law and the courts in civilian life must continue even in time of national emergency.
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Netanyahu’s court proposal, to remove the Supreme Court’s authority to abrogate governmental decisions if found by the court to be “unreasonable in the extreme” was bitterly denounced by Israelis, who marched in protest by the hundreds of thousands. But in July, Netanyahu pushed it into enactment by the Knesset, as opposition members boycotted the vote.
The case was then heard by the court on Sept. 12. Normally, high court matters are handled by a panel of five or more judges. However, this time, in an unprecedented situation, all 15 judges participated. The hearing lasted for more than 13 hours and was broadcast nationwide. Then, less than a month later, Hamas struck and Israel plunged into war.
While the war rallied the country, it didn’t stop the judges from continuing their evaluation of the controversial law and 12 of 15 justices have now agreed that their institution can strike down actions related to changes in the country’s fundamental “basic laws.” The split was much closer, eight to seven, to throw out this particular basic law, deciding that it “causes severe and unprecedented harm to the core characteristics of Israel as a democratic state.”
Rather than his slim majority that Netanyahu used to force through the now voided-law, the Hamas war caused the creation of a unity government, led by a three-man war cabinet: Netanyahu, Minister of Defense Yoav Gallant and Benny Gantz, the former chief of the general staff of the Israel Defense Forces.
Gallant and Gantz had opposed the legislation when it was being considered and Gantz was even temporarily sacked by Netanyahu over the measure. Did Hamas see in such squabbling a weak and divided Israel? Perhaps, but debate doesn’t weaken democracies, it strengthens them.
Monday, Gantz said “the ruling must be respected, and the lesson from conduct in the past year must be learned. We are brothers, and have a shared fate.”
The doctrine of judicial review, that courts have the final say on what laws mean, goes back to the young U.S. Supreme Court in its Marbury vs. Madison opinion from 1803. It makes the independent judiciary, not the political branches of the executive and legislature, the protectors of precedent and fundamental rights. Netanyahu’s failed amendment would have ended that and the court is to be commended for standing its ground.
In another aspect, the Israeli court’s decision was leaked to the press last week, like what happened in the overturning of Roe v. Wade.
Independent courts need to stay that way and don’t play politics by leaking decisions.
—New York Daily News/TNS
