In the Media

Monash University “Lens” – 4 January 2024

On 2 January, 2024, Israel’s Supreme Court published a dramatic decision in a case that just a few months ago was accompanied by a wave of unrest and tensions within the country. However, the attack by Hamas on Israeli cities, towns, and bases near Gaza on 7 October, 2023, situated the ruling in a different place in Israel’s history, and gave it a new meaning outside the legal arena.

Ever since Israel’s right-wing coalition government, led by Prime Minister Benjamin Netanyahu, came to power at the beginning of 2023, the more extremist parties have repeatedly pushed for drastic changes to the judiciary.

This reform was aimed at reducing what right-wing supporters believed to be excessive powers held by the courts. Specifically, they targeted the judges’ self-attributed authority to strike down legislation and disqualify government actions based on “lack of reasonableness” or injustice.

However, for millions of Israelis, the suggested reform was seen as a direct attack on the fragile democratic structure of the Jewish state.

In Israel, the government is formed on the basis of a majority in the unicameral Knesset (parliament), which means that the legislative branch is almost identical with the executive government.

With barely any separation between the two government branches (legislative and executive), the Supreme Court remains the primary player capable of safeguarding citizens against arbitrary government decisions and actions.

Months of mass protests, fuelled by supporters but mostly opponents of the judicial overhaul (who labelled it “a coup”), tore Israel apart from within.

At the peak of the conflict, public figures warned that these tensions could escalate into a civil war. Even the army became entangled in the political fray when reservist soldiers (including pilots, tech experts, and elite unit officers) announced their refusal to volunteer for the periodic service required to maintain their combat skills.

Groundbreaking counter-revolution

By mid-2023, the government had only one reform-related achievement – a basic law (in Hebrew, Khok Yesod – Foundational Law) was passed in July. This law blocked the court’s ability to use the reasonableness test when evaluating government decisions and actions.

Since, for religious and political reasons, Israel lacks a constitution, it has a series of basic laws that are regarded as superior to all other legislation, and that forms a sort of constitutional platform. However, the problem lies in the fact there’s currently no established legislative procedure to enact a basic law.

In theory, a bill can be elevated to a basic law for any reason, and may be passed by a regular majority in parliament.

Soon after the law was enacted, petitions were filed, leading the Supreme Court to examine its legality.

In the ruling, issued by all 15 Supreme Court judges (published on 2 January), they were asked to address two fundamental legal questions.

Firstly, does the court possess the authority to strike down a basic law?

Secondly, regarding the law that limits their own ability to use reasonable cause, is it “constitutional”?

The ruling resulted in a resounding “yes” majority, 12-3, for the first question, and a close “no” majority, 8-7, for the second question, thereby annulling the law.

The outcome of the ruling is nothing short of a counter-judicial revolution. The Supreme Court has effectively expanded its own authority to oversee legislation, including basic laws. In an unexpected twist ,the reform, intended to limit the power of the courts, in fact strengthened their supremacy over the parliament and the government.

Implications for the war in Gaza

Leading the pushback against the overhaul was Supreme Court Chief Esther Hayut, who retired after this ruling.

Her final verdict leaves a legacy of a strengthened judiciary, which is a significant development considering the ongoing war in Gaza.

One reason this is important is because the Supreme Court seemed to have resolved the dispute that was dividing Israeli society with grave implications on the country’s safety and regional status.

The internal dissent had severely damaged Israel’s deterrence.

Months before the 7 October Hamas attack, security experts, including high-ranking military officials, had warned the government that the animosity and divisions within Israel triggered by the legal reform were seen as weakness by Israel’s enemies, who believed the events in Israel confirm a prophecy about the Jewish state’s imminent demise.

Religious extremists in Hamas, Hezbollah, and Tehran interpreted this as an opportunity to “finish the job” and eliminate Israel.

Silhouette of soldier kneeling down on a background of sunset and Israel flag.

All it would take is a “push” in the form of the deadly strike on 7 October. This may be one of the reasons for the timing of the Hamas attack, which even IDF spokesperson Daniel Hagari recently admitted.

However, the terrorists and their Iranian handlers were proven wrong. Israelis on both sides of the judicial overhaul overwhelmingly united and volunteered in large numbers to fight what they saw as an existential battle in Gaza against Hamas, a genocidal terrorist organisation.

Equally important is the restoration of Israel’s image as a robust democracy. The Supreme Court ruling once again demonstrated the durability of the checks and balances in place in Israel.

Further, it successfully overturned what many of Israel’s allies, particularly the US administration, viewed as an attempt by the government to undermine Western civilisation’s values of accountability, the rule of law, and freedom of expression.

The renewed trust in Israel’s court system is also good news for the military personnel fighting in Gaza.

In the past, foreign anti-Israel groups attempted to sue senior IDF officers for their roles as commanders in various wars and military operations involving Palestinians.

United Nations officials and countries hostile to Israel called for international investigations into alleged Israeli war crimes. All these attempts failed due to the respect given to Israeli judicial integrity and independence by politicians and legal experts outside Israel.

The reform is now effectively dead in the water.

Most politicians understand that many within the Israeli public are pointing the blame at the Netanyahu government for exacerbating societal divisions and the deadly consequences of the judicial overhaul.

It took a national trauma of historic proportions to begin healing the anger and conflict that arose in the streets of Israel following the government’s controversial plan.

Illustrative photo: Screenshot