Israel is currently in the midst of a profound constitutional crisis. At its heart is a conflict of authority between the Israeli parliament and executive on the one hand and the Supreme Court of Israel, which sees itself as a judicial supervisory authority, on the other. The roots of the conflict stretch right back to the early years of the State of Israel. Its declaration of independence on 14 May 1948 followed the guidelines of the United Nations Partition Plan for Palestine of November 1947, which provided for the passing of a constitution by a "Constituent Assembly" that would be elected by the Jewish State.

Because of the ongoing Arab-Israeli War, this assembly was only elected in early 1949. It declared itself the Israeli parliament (Knesset) in February of the same year. However, a constitution was never adopted because the members of the Knesset could not – or would not – agree on its character.

In a situation not unlike the one today, the leading and ruling party at the time – David Ben Gurion's socialist Workers' Party of the Land of Israel (Mapai) – was not willing to have its authority restricted by fundamental legal norms. Ben Gurion's stance was supported by his religious and ultra-Orthodox coalition partners, who considered Jewish religious law the only viable basis for the constitution – something which secular politicians on both the left and right opposed.

Israel's Supreme Court established in 1948 (source: https://commons.wikimedia.org) — The need for checks and balances: the Supreme Court of Israel was founded in the summer of 1948 by the Provisional Council of State. Initially, there were five Supreme Court judges. Over the years, this number was gradually increased to reach its current level of 15 in 2009. The intention was that the Supreme Court's supervision of legal norms would prevent any abuse of the law by the state. However, the sitting judges largely submitted to the primacy of national security until well in the 1960s and even supported the government in cases where it did not necessarily act in conformity with democracy

A compromise was finally reached in June 1950, when the Knesset decided to create constitution-like structures in the form of individual basic laws. To date, 13 such basic laws have been passed.

The legacy of British colonial Mandate law

The lack of a constitution had far-reaching consequences. The young Israeli state adopted large parts of British colonial Mandate law, which was in part based on Ottoman law. However, this adopted body of law was only partially compatible with the State of Israel's image of itself as a democracy. Another source of conflict was the state's dual claim to be simultaneously democratic and exclusively Jewish. The intention was that the Supreme Court would resolve such contradictions.

The Supreme Court of Israel was founded in the summer of 1948 by the Provisional Council of State. Initially, there were five Supreme Court judges. Over the years, this number was gradually increased to reach its current level of 15 in 2009. The intention was that the Supreme Court's supervision of legal norms would prevent any abuse of the law by the state.

However, the Supreme Court judges largely submitted to the primacy of national security until well in the 1960s and even supported the government in cases where it did not necessarily act in conformity with democracy. One example of this was so-called "administrative detention without trial" – a legacy of British Mandate law, which above all affects Palestinians to this day.

In the absence of a constitution, the Supreme Court judges referred to the Israeli Declaration of Independence (which postulated equality), court rulings in Western democracies, or even the Bible when making their decisions. This occasionally led to conflicts with the legislature.

Ultra-Orthodox politicians versus secular Supreme Court judges

One such a conflict occurred in 1969 when the Supreme Court declared a party funding law to be invalid. The ruling Labor Party responded by insisting on the supremacy of the parliament. It accused the judges of inconsistency, arguing that they had supported the government on much more problematic issues such as house demolitions or the deportation of Palestinian terrorists.

As it was, the ultra-Orthodox politicians were constantly at loggerheads with the mostly secular Supreme Court judges, especially in those cases where the judges intervened in the rulings of religious courts.

Aharon Barak (OGH Chairman 1995-2006) (image: Kobi Kalmanovich, 2007) — Aharon Barak, President of the Supreme Court (SCJ) from 1995 to 2006, and an internationally respected legal scholar, was one of the proponents of a more assertive SCJ. Barak was teaching at the Hebrew University in Jerusalem at the time. In 1993, in a seminal treatise, he argued that the Supreme Court should not be content with the role of a selective corrective of the legislature. Because there is no constitution, the chief justices should adapt the entire Israeli jurisprudence step by step to the reality of life in the country and take corrective action wherever gaps are found in the legislation

The most significant change in Israel's judicial culture to date took place in the early 1990s. In the course of the political standstill that occurred during the grand coalition of the Labor Party and Likud in the late 1980s, a protest movement demanding structural reform emerged in Israel. With their "Constitution for Israel" initiative, a number of law professors at the time sought to get a comprehensive catalogue of basic laws passed.

While their initiative failed as a result of opposition from ultra-Orthodox politicians, one of their number, Amnon Rubinstein (a professor of law and member of parliament for the liberal Shinui party) succeeded in introducing two new basic laws of a constitutional character in 1992. These laws dealt with the freedom to choose an occupation and "human dignity and liberty".

This provided a constitutional framework of reference for human rights to which the Supreme Court could refer – which it emphatically proceeded to do. Conservative Israeli legal experts soon began to voice their objection to this state of affairs. They accused the Supreme Court judges of "judicial activism". From that point on, the pros and cons of this "judicial activism" were hotly debated in Israel's legal journals.

'Constitutional revolution'

One of the proponents of a more self-assured Supreme Court was the internationally respected professor of law Aharon Barak, who was at the time a lecturer at the Hebrew University of Jerusalem. In a ground-breaking paper in 1993, he expressed the opinion that the Supreme Court should not be satisfied with the role of being a corrective for the legislature on certain points. Because Israel had no constitution, he argued, the Supreme Court judges should gradually adapt the administration of justice in Israel to the reality of life in the country and should intervene as a corrective wherever gaps were discovered in the law.

The debates among legal experts became increasingly bitter, degenerating into trench warfare, when Aharon Barak was elected president of the Supreme Court of Israel in 1995. Moshe Landau, a previous president of the Supreme Court and a Zionist of the old guard, warned the Supreme Court judges at the time against using the new basic laws to put the rights of the individual above the interests of society, thereby fostering egoism in Israeli society.

Israeli Prime Minister Benjamin Netanyahu and his Security Minister Itamar Ben-Gvir (image: Mostafa AlKharouf/AA/picture-alliance) — Playing for time: on 27 March 2023, Israeli Prime Minister Benjamin Netanyahu announced he would delay a key part of his controversial programme of judicial reform, citing the desire to prevent a "rupture among our people". The move followed intensified protests after he fired his defence minister, who had spoken out against the plans. In an unprecedented series of events, the country's biggest trade union called a strike, and Israelis watched society close down around them

In spite of these misgivings, the significance of the Supreme Court grew continuously. To this day, liberals in Israel see this development – which is referred to in Israel as the "constitutional revolution" – as the appropriate implementation of what they consider to be a specifically Jewish sense of justice.

Nevertheless, even during Barak's presidency of the Supreme Court, which lasted until 2006, the Supreme Court came in for major criticism from a variety of corners. For example, human rights activists and those opposed to occupation accused the court of betraying its own principles because it had repeatedly rubber-stamped the arbitrary detention and torture of Palestinians. For ultra-nationalist settlers, the ultra-Orthodox camp and others, the Supreme Court remains to this day the embodiment of a "judicial dictatorship".

As far back as 2003, prominent Likud politician Reuven Rivlin – speaker of the Knesset at the time and later president of the State of Israel from 2014 to 2021 – rebuked the Supreme Court, calling it a "danger for Israeli democracy" and labelled Aharon Barak's attempts at reform a "coup d'etat". This kind of vilifying rhetoric spread rapidly through the ranks of Likud. But for some members, words were not enough.

Right-wing campaign against the Supreme Court

Gideon Saar, long a loyal ally of Benjamin Netanyahu after he came to power in 2009, had already introduced an amendment to a law that increased the influence of politicians on the Judicial Selection Committee during the government of Netanyahu's predecessor, Ehud Olmert.

As Netanyahu's minister of the interior in 2014, Saar attacked the Supreme Court after it cancelled a controversial bill he had introduced to allow for the incarceration of illegal migrants ("infiltrators") for a year without trial.

Saar responded by calling for the powers of Supreme Court judges to be restricted, an objective he continued to pursue after he left Likud in 2020 following a dispute and founded his own party.

But Gideon Saar is not the only Likud politician to have waged a campaign against the Supreme Court. The current minister of justice, Yariv Levin, claimed as far back as 2011 that a radical left-wing group had "usurped" the Supreme Court. In 2020, when Levin's suit against the cancellation of a law with which the Netanyahu-Gantz government sought to postpone the passing of the budget was rejected by Supreme Court judges, he accused them of a "coup".

To limit the authority of the Supreme Court, Levin submitted a legislative proposal in 2021 that now forms the basis of his most recent proposals for judicial reform. The aim is to link these proposals with those of the right-wing extremist Simcha Rothman, who has been pursuing similar goals for a long time.

In short, this right-wing campaign against the Supreme Court of Israel is by no means new. And only those who ignored or underestimated this campaign – for whatever reason – can claim to be surprised at recent developments.

If Yariv Levin's proposal to allow the Knesset to overturn basic laws that were passed with a majority of less than 61 votes (out of 120) is implemented, the basic law on "human dignity and liberty" would be under threat.

This law was passed during a protracted night-time plenary session in 1992 by a majority of only 32 to 21 due to the absence of a large number of members. Its repeal would destroy one of the most important achievements of Israel's judicial culture and would set the country's legal system back decades.

Joseph Croitoru

Translated from the German by Aingeal Flanagan

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