The “Now it is, Now it isn’t” Constitutional Nature of an Israeli Basic Law

by Yotam Eyal is the director of The Legal Forum for Israel which dedicates itself to fight for justice, submits appeals and law proposals to correct faults in the current system, writes reports and articles for the media, gives lectures and publicizes the current situation. Its goal is to educate the public and the legislators as to their rights in a democracy and to the need for a balance of power between the three branches of government.

Last week, the constitutional nature of a Basic Law was raised in the Supreme Court, specifically, the question of the constitutionality of an amendment to the "Basic Law: The Government". This amendment was enacted to prevent the Attorney General, who is legal advisor to the government, from declaring that a Prime Minister who has an indictment against him or her is de facto incapacitated and thus must be dismissed.

It is important to note that the person who is authorized to indict the Prime Minister is none other than the Attorney General, who in Israel is the legal advisor to the government but also head of the public prosecution system. Therefore, if the legal advisor to the government retained this authority, she would be able to dismiss a Prime Minister by acting in her second role as head of the prosecution solely by pressing charges against him or her for an alleged offense.

[Note that the duties of the attorney general are not codified in law and have been born out of precedent over the years, including the fact that the attorney general's legal advice is binding and that the attorney general has representational monopoly vis a vis the government in Israel. This is exceptional and even unique by global standards. The attorney general is chosen for a fixed term which is unaffected by the election of a new prime minister].

The definition of what constitutes “incapacity” was never explicitly delineated, but it was always accepted that incapacity was connected to one’s medical condition. No one imagined that there would ever be a situation in which the legal advisor to the government considers that she has the authority to declare a Prime Minister incapacitated for any other reason. However, from the moment that the legal advisor announced that she believes that she has the authority to declare that a Prime Minister is unable to fulfil his position and thus has the authority to dismiss him, there was a need to amend the law so that it was no longer ambiguous.

The determination of “incapacity” is an interesting issue, but the really important issue is whether the Supreme Court has the authority to invalidate Basic Laws passed by the Knesset. To briefly review the status of Basic Laws, it was determined in the First Knesset that, as a result of the difficulty in agreeing upon a constitution, Basic Laws were to be enacted as ordinary laws which, upon their completion, would eventually form the basis for the constitution and constitute the highest normative source in the State of Israel. However, in 1995, Aharon Barak, then the President of the Supreme Court and as part of his (in his own words) "judicial revolution", determined that in spite of the fact that not all the Basic Laws had been passed, nor a constitution written and ratified, the Basic Laws that already were on the books had the force of a constitution and therefore other laws could be invalidated if they contradicted a Basic Law.

Barak’s position is very problematic, as he gave the Supreme Court the power to determine the constitutional norms of the State of Israel which should only be determined by elected officials, and the power to invalidate legislation of the Knesset, a power which was never authorized by the government. There is some logic to his position. As the Basic Laws were eventually to constitute the constitution, it makes sense that these laws are more authoritative than ordinary laws.

But what happens when the court doesn’t like a Basic Law? According to Barak’s own logic, the court is unable to rule on a Basic Law. Nevertheless, a number of years ago, Supreme Court judges declared that they have the authority to invalidate Knesset Basic Laws if, in their opinion, the Basic Laws contradict the democratic principles of the State of Israel. (At that time, the issue was resolved without the Supreme Court actually ruling on the Basic Law, as the issue at hand was no longer relevant).

And what are these democratic principles of the State of Israel? It depends on who you ask, of course, but when it comes to the judges of the Supreme Court in Israel, it seems that anything that contradicts their opinion contradicts democratic principles. Today it could be the question of determining whether a Prime Minister is fit to serve, or an esoteric matter such as the cancellation of the subjective "reasonableness standard".

But no matter what their principles are, it shouldn’t matter, for it is simply not within their authority to rule on Basic Laws.

If that is the case, how did the judges deal with this crucial question in court last week, when the judges were presented with petitions against the amendment to the "Basic Law: The Government", regarding incapacity? They simply informed the parties that there was nothing to discuss because they themselves had already determined that they had the authority to rule on Basic Laws and therefore the matter was already agreed upon. When they were shown that there was a minority opinion among the judges in the Supreme Court whose adherents had written that they did not have this authority, the judges answered in a way that can only be interpreted as mocking, and claimed that they follow "majority rule".

The hubris of the judges who simply dismiss the most important constitutional question of the day, judges who appropriated the authority to rule with no legal basis, judges who rule contrary to the values of the majority of the public in democratic elections to the Knesset and further justify this because among their exclusive, self-appointed group, there was a majority opinion of 10 judges, is indescribable.

If the judges actually invalidate the amendment to the "Basic Law: The Government", then Israel will no longer be a democracy but a country ruled by a judicial junta. The Knesset and the government would have no authority to implement laws for which they were elected and the court would have no limitations on its power.

Is this the face of the “democracy” that the leaders of the opposition to judicial reform are calling for?

The Legal Forum for Israel continues to fight every day to safeguard the national interests of the people of Israel with an emphasis on the legal system. We meet with Members of Knesset on a regular basis, publish articles, are interviewed in the media and work to dispel the misinformation that has caused and causes such a rift amongst ordinary citizens. We continue to fight for a Jewish and democratic state based on the rule of law and the balance of power between the three governmental bodies – the legislative, executive, and judicial.

https://www.israelnationalnews.com/news/375224