Does the Declaration of Independence allow court to strike basic laws?

The Declaration of Independence became a key element in the arguments at the High Court of Justice hearing Tuesday on petitions to cancel the judicial reform’s reasonableness standard law.

The July 24 law was an amendment to Basic Law: The Judiciary, leading much of the argument on Tuesday to be devoted to the court’s ability to strike down such quasi-constitutional articles.

The power was contested by politicians such as Knesset Speaker Amir Ohana in the weeks leading up to the elections, but the court has in the past expressed it has the power to do so.

In the 2021 Nation-State Law ruling, Supreme Court President Esther Hayut wrote that the judiciary had the authority to protect the democratic and Jewish values of the state by preventing the integration of violations of Basic Laws into the incomplete constitution. The state’s Jewish and democratic values are largely derived from the Declaration of Independence,

Attorney for the government Ilan Bombach on Tuesday challenged the right of the court to strike Basic Laws, saying, “It can’t be said that the signatories to the Declaration of Independence gave you the authority for judicial review.”

Bombach argued that the declaration’s signatories were not representative of the populace, so they had no authority to establish something that would be a constitution. Hayut and other justices challenged Bombach about where the constituent authority of the Knesset came from, which he said was the citizenry. He had also attempted to argue that it came from the 1950s Harari Compromise, but it was noted by Justice Alex Stein that the state wasn’t established with the decision, which created the constitutional process of developing Basic Laws and assembling them into a constitution in the future.

Court Vice President Uzi Vogelman argued that Bombach and the government were trying to diminish the constitutional weight of the declaration, while at the same time use the declaration-derived constituent authority to push the immutability of Basic Laws and lack of limits for the Knesset to introduce them.

The 1948 declaration had called for the election of a constituent assembly and the drafting of a constitution. The assembly adopted the Transition Law, converting itself into a legislature with the powers of assembly.

More conservative justices such as Noam Sohlberg argued against the opinion of his colleagues, aiding Bombach by quoting founder David Ben-Gurion as being against judicial review connected to the declaration.

Why has the Declaration of Independence become a judicial reform protest symbol?

The last year has seen the Declaration of Independence gain resurgent symbolic prominence among opposition and anti-reform elements. The scroll has been printed up and used as a banner, passages have been plastered onto signs, and it featured as a decoration at the Israel Bar Association conference on September 4.

Opposition Yair Lapid in February submitted a bill for Basic Law: Declaration of Independence to enshrine the scroll as constitutional, which has also been proposed by various NGOs.

The reason for the popularization of the declaration is its list of rights that it calls to foster, saying Israel “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice, and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education, and culture; it will safeguard the holy places of all religions; and it will be faithful to the principles of the Charter of the United Nations.”

Israel has a limited human rights regime through Basic Law: Human Dignity and Liberty, with many rights derived through court interpretation. Critics of the judicial reform have feared a restriction of rights with the now-frozen proposal to restrict judicial review, which drafter and Constitution, Law, and Justice Committee chairman MK Simcha Rothman noted would have eliminated derived rights.

The hearing on Tuesday has served to once again propel the declaration into the limelight. It still remains unlikely that the court would strike down the reasonableness law, but it has been suggested by some experts that the court may try to expand and clarify the guidelines for when it can strike down Basic Laws.

This would likely once again rely on the declaration. While it is also unlikely that the court would go too far, such a ruling could serve to enshrine the role of the declaration as a constitutional document, and thereby solidify the court’s claim to judicial review of Basic Laws. This improbable outcome would constitute a second constitutional revolution.

Far out speculation aside, reformists and coalition politicians will need to shore up their arguments as to why the court doesn’t have the right to engage in review of Basic Laws. Arguments in the court failed to fully pass the challenge of the justices about the proto-constitutionality of the Declaration of Independence.